BELLE FLEUR v. Antonio Hernandez, et al., Appellants. (2019)

DECISION & ORDER

ORDERED that the order dated March 23, 2017, is affirmed insofar as appealed from; and it is further,

ORDERED that the order dated April 3, 2017, is reversed, on the law, and that branch of the motion of the defendants Antonio Hernandez and Julie P. Transit, Inc., which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted; and it is further,

ORDERED that one bill of costs is awarded to the appellants, payable by the respondents appearing separately and filing separate briefs.

The plaintiffs commenced this action to recover damages for injuries allegedly sustained in a motor vehicle accident The plaintiffs were passengers in a vehicle owned by the defendant Joseph Junior Basile and operated by the defendant Heris Desriviere (hereinafter the Desriviere vehicle) The Desriviere vehicle was traveling southbound on East 91st Street in Brooklyn when it collided with a vehicle owned by the defendant Julie P. Transit, Inc. (hereinafter Julie P. Transit), and operated by the defendant Antonio Hernandez (hereinafter the Hernandez vehicle). The Hernandez vehicle was traveling eastbound on Avenue M. It is uncontested that a stop sign controls the traffic on East 91st Street in the direction in which the Desriviere vehicle was traveling, and that Avenue M, the street on which the Hernandez vehicle was traveling, was a through street with the right-of-way.

Hernandez and Julie P. Transit moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, arguing, inter alia, that Desriviere violated Vehicle and Traffic Law § 1142(a) and that his actions were the sole proximate cause of the accident Hernandez and Julie P. Transit also moved pursuant to CPLR 3126(2) to preclude Desriviere and Basile from submitting affidavits or other statements or testimony in opposition to their motion for summary judgment dismissing the complaint insofar as asserted against them due to the failure of Desriviere and Basile to appear for depositions.

In an order dated March 23, 2017, the Supreme Court, inter alia, denied that branch of the motion of Hernandez and Julie P. Transit which was pursuant to CPLR 3126(2) to preclude Desriviere and Basile from submitting affidavits or other statements or testimony in opposition to their motion for summary judgment Thereafter, in an order dated April 3, 2017, the court denied that branch of the motion of Hernandez and Julie P. Transit which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them Hernandez and Julie P. Transit appeal from both orders.

We agree with the Supreme Court's determination to deny that branch of the motion of Hernandez and Julie P. Transit which was pursuant to CPLR 3126(2) to preclude Desriviere and Basile from submitting affidavits or other statements or testimony in opposition to their motion for summary judgment Hernandez and Julie P. Transit failed to submit an affirmation of good faith indicating that efforts had been made to resolve the discovery issue prior to engaging in motion practice, as required by 22 NYCRR 202.7(a)(2) (see Goodwin v. Guardian Life Ins. Co. of Am., 156 A.D.3d 765, 767, 68 N.Y.S.3d 100; Perez v. Stonehill, 121 A.D.3d 960, 961, 993 N.Y.S.2d 920) Moreover, there was no clear showing that Desriviere and Basile willfully and contumaciously failed to appear for examinations before trial (see CPLR 3126; Cannon v. 111 Fulton St. Condominium, Inc., 162 A.D.3d 838, 839, 80 N.Y.S.3d 76; Conciatori v. Port Auth. of N.Y. & N.J., 46 A.D.3d 501, 502–503, 846 N.Y.S.2d 659).

However, the Supreme Court should have granted that branch of the motion of Hernandez and Julie P. Transit which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign in violation of Vehicle and Traffic Law § 1142(a) is negligent as a matter of law (see Breen v. Seibert, 123 A.D.3d 963, 964, 999 N.Y.S.2d 176; Derosario v. Gill, 118 A.D.3d 739, 739, 987 N.Y.S.2d 225; Maliza v. Puerto–Rican Transp. Corp., 50 A.D.3d 650, 651, 854 N.Y.S.2d 763) The driver with the right-of-way is entitled to anticipate that the other motorist will obey traffic laws that require him or her to yield (see Yu Mei Liu v. Weihong Liu, 163 A.D.3d 611, 81 N.Y.S.3d 75; Giwa v. Bloom, 154 A.D.3d 921, 62 N.Y.S.3d 527) Yet, “a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident” (Adobea v. Junel, 114 A.D.3d 818, 819, 980 N.Y.S.2d 564; see Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 1056, 966 N.Y.S.2d 167; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861) Here, Hernandez and Julie P. Transit established their entitlement to judgment as a matter of law by submitting evidence demonstrating that (1) Hernandez had the right-of-way, (2) that because Desriviere failed to yield the right-of-way upon entering the intersection in violation of Vehicle and Traffic Law § 1142(a), he was negligent as a matter of law, and (3) that Desriviere's negligence was the sole proximate cause of the accident (see Williams v. Hayes, 103 A.D.3d 713, 714–715, 959 N.Y.S.2d 713; Thompson v. Schmitt, 74 A.D.3d 789, 789–790, 902 N.Y.S.2d 606; Maliza v. Puerto–Rican Transp. Corp., 50 A.D.3d at 652, 854 N.Y.S.2d 763) The question of whether Desriviere stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop (see Maliza v. Puerto–Rican Transp. Corp., 50 A.D.3d at 652, 854 N.Y.S.2d 763; Exime v. Williams, 45 A.D.3d 633, 845 N.Y.S.2d 450) In opposition, neither the plaintiffs nor Desriviere and Basile raised a triable issue of fact as to whether Hernandez was at fault in the happening of the accident.

DILLON, J.P., COHEN, MILLER and CONNOLLY, JJ., concur.