TOGATI v. MACY EAST INC (1999)

Supreme Court, Appellate Division, Second Department, New York.

John TOGATI, et al., appellants, v. MACY'S EAST, INC., et al., respondents.

Decided: December 27, 1999

DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN and HOWARD MILLER, JJ.

Rosenberg, Minc & Armstrong, New York, N.Y. (Steven Falkoff of counsel), for appellants. Diamond, Paino, Cardo, King, Peters & Fodera, Brooklyn, N.Y. (Deborah F. Peters of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rappaport, J.), dated April 13, 1999, which denied their motion for partial summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff John Togati, while operating a motor scooter, collided with a motor vehicle operated by the defendant Eugene Bozzo in the intersection of 71st Street and 11th Avenue in Brooklyn. Although Togati had the right-of-way, there was evidence that Bozzo had already stopped at a stop sign before entering the intersection. Accordingly, there are issues of fact as to liability, and the plaintiffs' motion for partial summary judgment was properly denied (cf., Gravina v. Wakschal, 255 A.D.2d 291, 679 N.Y.S.2d 420; Perez v. Brux Cab Corp., 251 A.D.2d 157, 674 N.Y.S.2d 343; Ponticello v. Wilhelm, 249 A.D.2d 459, 671 N.Y.S.2d 315).

MEMORANDUM BY THE COURT.

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