HULL v. SPAGNOLI (2007)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated September 5, 2006, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendants established their entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that the injured plaintiff failed to yield the right of way after stopping at a stop sign controlling traffic in violation of Vehicle and Traffic Law § 1142(a) (see Gergis v. Miccio, 39 A.D.3d 468, 834 N.Y.S.2d 253;  Laino v. Lucchese, 35 A.D.3d 672, 827 N.Y.S.2d 249;  Friedberg v. Citiwide Auto Leasing, Inc., 22 A.D.3d 522, 801 N.Y.S.2d 770;  McNamara v. Fishkowitz, 18 A.D.3d 721, 795 N.Y.S.2d 714;  Nolan v. Mizrahi, 12 A.D.3d 430, 783 N.Y.S.2d 849).   The injured plaintiff was required to “see that which through proper use of [her] senses [she] should have seen” (Bongiovi v. Hoffman, 18 A.D.3d 686, 687, 795 N.Y.S.2d 354 [citation omitted];  see Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286), and the defendant driver who had the right of way was entitled to anticipate that the injured plaintiff would obey the traffic law requiring her to yield (see Platt v. Wolman, 29 A.D.3d 663, 816 N.Y.S.2d 121;  Dileo v. Barreca, 16 A.D.3d 366, 793 N.Y.S.2d 53;  Rossani v. Rana, 8 A.D.3d 548, 779 N.Y.S.2d 211).

In opposition to the motion, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendant driver was negligent (see Hou-Ching Chou v. Wong, 34 A.D.3d 642, 824 N.Y.S.2d 436;  McNamara v. Fishkowitz, 18 A.D.3d 721, 795 N.Y.S.2d 714;  Ishak v. Guzman, 12 A.D.3d 409, 784 N.Y.S.2d 600).