MALIZA v. Roberto Luna, appellant. (2008)

In an action to recover damages for personal injuries, the defendant Roberto Luna appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated September 27, 2006, which denied his motion for summary judgment, in effect, dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Roberto Luna for summary judgment, in effect, dismissing the complaint and all cross claims insofar as asserted against him is granted.

The plaintiffs were passengers in a vehicle operated by the defendant Edison Moposita (hereinafter Moposita), which collided with a vehicle operated by the defendant Roberto Luna at the intersection of Knickerbocker Avenue and Jefferson Street in Brooklyn.   A stop sign at the subject intersection controls traffic traveling on Jefferson Street, but no stop sign controls traffic traveling on Knickerbocker Avenue.   At their depositions, the plaintiffs testified that Moposita brought his vehicle to a complete stop at the stop sign on Jefferson Street before proceeding into the intersection, where his vehicle was struck by Luna's vehicle.   Luna subsequently moved for summary judgment, contending that Moposita's negligence was the sole proximate cause of the accident because Moposita came through the stop sign at a high rate of speed and failed to yield the right of way.   The Supreme Court denied the motion, finding, inter alia, that there was an issue of fact as to whether Moposita stopped at the stop sign prior to entering the intersection.   We reverse.

 “A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law” (Gergis v. Miccio, 39 A.D.3d 468, 468, 834 N.Y.S.2d 253;  see Exime v. Williams, 45 A.D.3d 633, 845 N.Y.S.2d 450;  Marcel v. Chief Energy Corp., 38 A.D.3d 502, 832 N.Y.S.2d 61).   Here, Luna made a prima facie showing of his entitlement to summary judgment by submitting evidence that Moposita failed to properly observe and yield to cross traffic before proceeding into the intersection (see Exime v. Williams, 45 A.D.3d at 634, 845 N.Y.S.2d 450;  Hull v. Spagnoli, 44 A.D.3d 1007, 844 N.Y.S.2d 416;  Gergis v. Miccio, 39 A.D.3d at 468-469, 834 N.Y.S.2d 253;   Bongiovi v. Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354).   As the driver with the right-of-way, Luna was entitled to assume that Moposita would obey the traffic laws requiring him to yield (see Hull v. Spagnoli, 44 A.D.3d at 1007, 844 N.Y.S.2d 416;  McCain v. Larosa, 41 A.D.3d 792, 793, 838 N.Y.S.2d 663;  Gergis v. Miccio, 39 A.D.3d at 468-469, 834 N.Y.S.2d 253) “The question of whether [Moposita] stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop” (Morgan v. Hachmann, 9 A.D.3d 400, 400, 780 N.Y.S.2d 33;  see Exime v. Williams, 45 A.D.3d at 633-634, 845 N.Y.S.2d 450;  McCain v. Larosa, 41 A.D.3d at 793, 838 N.Y.S.2d 663).   Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision (see Mateiasevici v. Daccordo, 34 A.D.3d 651, 652, 825 N.Y.S.2d 502;  Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604), in opposition to the motion the plaintiffs failed to raise an issue of fact as to whether Luna was comparatively negligent (see Hull v. Spagnoli, 44 A.D.3d at 1007, 844 N.Y.S.2d 416;  Mateiasevici v. Daccordo, 34 A.D.3d at 652, 825 N.Y.S.2d 502;  Klein v. Byalik, 1 A.D.3d 399, 766 N.Y.S.2d 687;  Gravina v. Wakschal, 255 A.D.2d 291, 291-292, 679 N.Y.S.2d 420).

Furthermore, the plaintiffs' contention that Vehicle and Traffic Law § 1140(a) required Luna to yield the right-of-way to a vehicle entering the intersection from a different highway is without merit.   That provision pertains to uncontrolled intersections (see Vehicle and Traffic Law §§ 149, 1140[c] ), and is superseded by Vehicle and Traffic Law §§ 1142 and 1172, which deal specifically with the rights and obligations of vehicles at intersections controlled by stop signs (see Le Claire v. Pratt, 270 A.D.2d 612, 613, 704 N.Y.S.2d 354;  Crespo v. New York City Hous. Auth., 222 A.D.2d 300, 635 N.Y.S.2d 593).