CAMPBELL LOPEZ v. CRUZ (2006)

In three related actions to recover damages for personal injuries, Kenny M. Harvey and Daphne E. Harvey, defendants in Action Nos. 1 and 3, appeal from an order of the Supreme Court, Kings County (Bunyan J.), dated January 26, 2005, which denied their motion for summary judgment dismissing the complaint and cross claims in Action Nos. 1 and 3 insofar as asserted against them.

ORDERED that the appeal by the defendants Kenny M. Harvey and Daphne E. Harvey in Action No. 1 is dismissed as withdrawn, pursuant to a stipulation between the parties dated June 14, 2006;  and it is further,

ORDERED that the order is affirmed insofar as reviewed, with one bill of costs to the respondents.

This appeal involves a three-car accident which occurred at or near the intersection of Dumont Street and Howard Avenue in Brooklyn. The appellants contend that they were entitled to summary judgment in Action No. 3 because the negligence of the defendant Dionisio DeJesus Cruz in failing to yield the right-of-way was the sole proximate cause of the accident.

The appellants failed to satisfy their prima facie burden of establishing their entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In this regard, although Cruz's direction of travel was controlled by a stop sign, there are triable issues of fact, inter alia, as to whether the appellants were free of negligence (see Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365;  Hernandez v. Bestway Beer & Soda Distrib., 301 A.D.2d 381, 753 N.Y.S.2d 467).   Accordingly, that branch of the appellants' motion which was for summary judgment in Action No. 3 was properly denied (see Bodner v. Greenwald, 296 A.D.2d 564, 745 N.Y.S.2d 711).