RIVERA v. BERRIOS TRANS SERVICE INC

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Supreme Court, Appellate Division, First Department, New York.

William RIVERA, et al., Plaintiffs-Appellants, v. BERRIOS TRANS SERVICE INC., et al., Defendants-Respondents.

Decided: July 02, 2009

GONZALEZ, P.J., MAZZARELLI, FRIEDMAN, CATTERSON, RENWICK, JJ. Alpert & Kaufman, LLP, New York (Morton Alpert of counsel), for appellants. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon of counsel), for respondents.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered January 7, 2008, which, in an action for personal injuries sustained in a motor vehicle accident, granted defendants' motion for summary judgment dismissing the complaint, reversed, on the law, without costs, the motion denied, the complaint reinstated, and the matter remanded for further proceedings, including disposition of that branch of defendants' motion for summary judgment dismissing plaintiff Isabel Rivera's complaint on the ground that she did not sustain a “serious injury” within the meaning of Insurance Law § 5102(d).

It cannot be said as a matter of law that plaintiff driver's conduct was the sole proximate cause of the subject car accident.   Although a stop sign regulated the approach of plaintiff driver into the intersection and no traffic control devices regulated defendant driver's approach, the record presents triable issues of fact, including, inter alia, whether plaintiff stopped for the stop sign and which vehicle was in the intersection first (see Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 867 N.Y.S.2d 431 [1st Dept. 2008];  Wilson v. Trolio, 30 A.D.3d 255, 816 N.Y.S.2d 355 [2006];  Hernandez v. Bestway Beer & Soda Distrib., 301 A.D.2d 381, 753 N.Y.S.2d 467 [2003] ).

Because the motion court denied, as moot, the branch of defendants' motion for summary judgment dismissing plaintiff Isabel Rivera's complaint on the ground that she did not sustain a “serious injury,” the matter is remanded for disposition of that branch of defendants' motion.

Although I am in agreement with the reasoning of my dissenting colleague, I nevertheless feel constrained by our decision in Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 867 N.Y.S.2d 431 [2008], and therefore concur with the majority.

I am compelled to dissent for the reasons stated in my dissent in Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295, 299, 867 N.Y.S.2d 431, 434-435 (2008) because I believe that the facts of the two cases present the same issue, namely:  the duty of drivers on both dominant and subservient streets when approaching a stop sign.

All concur except GONZALEZ, P.J. who concurs, and CATTERSON, J. who dissents, in separate memoranda as follows: