EXIME v. WILLIAMS (2007)

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Bunyan J.), dated September 6, 2006, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

 “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 Friedberg v. Citiwide Auto Leasing, Inc., 22 A.D.3d 522, 523, 801 N.Y.S.2d 770;  see also Perez v. Paljevic, 31 A.D.3d 520, 818 N.Y.S.2d 581).   However, there can be more than one proximate cause of an accident (see Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604).   Evidence that one driver “ran” a stop sign does not preclude a finding that comparative negligence on the part of the other driver contributed to the accident (see Cox v. Nunez, 23 A.D.3d at 427, 805 N.Y.S.2d 604).   Thus, “[u]nder the doctrine of comparative negligence, ‘a driver who lawfully enters an intersection ․ may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection’ ” (Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365, quoting Siegel v. Sweeney, 266 A.D.2d 200, 202, 697 N.Y.S.2d 317;  see Cox v. Nunez, 23 A.D.3d at 427, 805 N.Y.S.2d 604).

 The defendant established his prima facie entitlement to judgment as a matter of law by submitting evidence indicating that the plaintiff Joseph Y. Exime, while operating a motor vehicle, failed to yield the right-of-way upon entering an intersection in violation of Vehicle and Traffic Law § 1142(a), and thus that he was negligent as a matter of law (see 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;  Laino v. Lucchese, 35 A.D.3d 672, 673, 827 N.Y.S.2d 249;  McNamara v. Fishkowitz, 18 A.D.3d 721, 721-722, 795 N.Y.S.2d 714;   Meliarenne v. Prisco, 9 A.D.3d 353, 354, 780 N.Y.S.2d 30).   The defendant was entitled to assume that Exime would obey the traffic laws requiring him to yield (see McCain v. Larosa, 41 A.D.3d at 793, 838 N.Y.S.2d 663).   The question of whether Exime actually stopped at the stop sign before entering the intersection, as he was required to do, is not dispositive, as the evidence indicated that, whether or not he stopped at the stop sign, he failed to yield to a vehicle with the right-of-way (see McCain v. Larosa, 41 A.D.3d at 793, 838 N.Y.S.2d 663).

 In opposition to the defendant's motion, the plaintiffs contended that the defendant's vehicle was traveling at an excessive rate of speed as it entered the intersection.   However, these assertions, insofar as raised in Exime's affidavit, were speculative, as Exime testified at his deposition that he never saw the defendant's vehicle prior to the collision.   The affidavit of the plaintiffs' expert to this effect was speculative, conclusory, and insufficient to raise an issue of fact so as to defeat the defendant's motion for summary judgment (see McCain v. Larosa, 41 A.D.3d at 793, 838 N.Y.S.2d 663;  Youthkins v. Cascio, 298 A.D.2d 386, 387, 751 N.Y.S.2d 216, affd. 99 N.Y.2d 638, 760 N.Y.S.2d 91, 790 N.E.2d 264;  Terwilliger v. Dawes, 204 A.D.2d 433, 433-434, 611 N.Y.S.2d 646;  cf. Gergis v. Miccio, 39 A.D.3d at 469, 834 N.Y.S.2d 253;  Laino v. Lucchese, 35 A.D.3d at 673, 827 N.Y.S.2d 249;  McNamara v. Fishkowitz, 18 A.D.3d at 721-722, 795 N.Y.S.2d 714;  Trzepacz v. Jara, 11 A.D.3d 531, 531, 782 N.Y.S.2d 852;  Meliarenne v. Prisco, 9 A.D.3d at 354, 780 N.Y.S.2d 30;  Mora v. Garcia, 3 A.D.3d 478, 479, 771 N.Y.S.2d 138;  Meretskaya v. Logozzo, 2 A.D.3d 599, 600, 769 N.Y.S.2d 580).   Accordingly, as the plaintiff failed to raise a triable issue of fact, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.