McCAIN v. LAROSA

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

Claudia McCAIN, et al., appellants, v. Giacomo LAROSA, et al., respondents, et al., defendants.

Decided: June 26, 2007

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, STEVEN W. FISHER, and RUTH C. BALKIN, JJ. James M. Lane, New York, N.Y. and The Cochran Firm, New York, N.Y. (Joseph S. Rosato and Paul A. Marber of counsel), for appellants (one brief filed). James P. Nunemaker, Jr., Uniondale, N.Y. (Marcella Gerbasi Crewe of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Dorsa, J.), entered September 9, 2005, as, upon so much of an order of the same court dated July 14, 2005, as granted the motion of the defendants Giacomo Larosa and James Larosa for summary judgment dismissing the complaint insofar as asserted against them, is in favor of those defendants and against the plaintiffs dismissing the complaint insofar as asserted against them.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

This action arises out of a car accident which occurred on December 29, 2002, at the intersection of 257th Street and 147th Avenue in Queens.   The defendant James Larosa was proceeding eastbound on 147th Avenue, when his car (hereinafter the Larosa car) collided with that of the defendant Willie McCain (hereinafter the McCain car), which was proceeding southbound on 257th Street. 257th Street was controlled by a stop sign;  however, 147th Street was not.   The passengers in the car driven by McCain brought suit against Larosa, as the driver, and his father, as the owner of the Larosa car (hereinafter the Larosas), and against McCain as the driver of the McCain car.

The plaintiffs previously appealed from a July 14, 2005, order granting the motion of the Larosas for summary judgment dismissing the complaint as to them.   Subsequently, the court rendered a judgment, and the plaintiffs also timely appealed from the judgment.   The plaintiffs' appeal from the order was dismissed for failure to prosecute.   However, the plaintiffs properly perfected their appeal from the judgment.

Under the particular circumstances of this case, in the exercise of our discretion, notwithstanding the prior dismissal for failure to prosecute of the plaintiffs' appeal from the order upon which the judgment is predicated (see Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575), this court may determine the issues raised on the appeal from the judgment (see Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864;  Tierney v. Drago, 38 A.D.3d 755, 833 N.Y.S.2d 127;  Cesar v. Highland Care Ctr. Inc., 37 A.D.3d 393, 829 N.Y.S.2d 236;  Podbielski v. KMO-361 Realty Assoc., 294 A.D.2d 552, 553, 742 N.Y.S.2d 664).

In reaching the merits, the Larosas demonstrated their entitlement to summary judgment as a matter of law by submitting evidence that McCain failed to yield the right-of-way after stopping at a stop sign controlling traffic, in violation of Vehicle and Traffic Law § 1142(a), and thus that he was negligent as a matter of law (see Vehicle and Traffic Law § 1142[a];  Gergis v. Miccio, 39 A.D.3d 468, 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, 722, 795 N.Y.S.2d 714;  Meliarenne v. Prisco, 9 A.D.3d 353, 354, 780 N.Y.S.2d 30).   Larosa was entitled to assume that McCain would obey the traffic laws requiring him 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, 367-368, 793 N.Y.S.2d 53;  Lagana v. Fox, 6 A.D.3d 583, 776 N.Y.S.2d 298).  “The question of whether [Mr. McCain] 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 Klein v. Byalik, 1 A.D.3d 399, 400, 766 N.Y.S.2d 687;  Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286).

The plaintiffs' contention in opposition, to the effect that there is a triable issue of fact as to Larosa's negligence because he allegedly was inattentive and speeding, appears wholly speculative (see Arbizu v. REM Transp., Inc., 20 A.D.3d 375, 376, 799 N.Y.S.2d 231;  Trzepacz v. Jara, 11 A.D.3d 531, 782 N.Y.S.2d 852;  Mora v. Garcia, 3 A.D.3d 478, 479, 771 N.Y.S.2d 138).   The purported expert's affidavit to this effect is conclusory in nature and insufficient to defeat the Larosas' summary judgment motion (see Marmaduke v. Spraker, 34 A.D.3d 1007, 825 N.Y.S.2d 549;  Horton v. Warden, 32 A.D.3d 570, 572, 819 N.Y.S.2d 356;  Salzano v. Korba, 296 A.D.2d 393, 395, 745 N.Y.S.2d 56;  Bova v. County of Saratoga, 258 A.D.2d 748, 750, 685 N.Y.S.2d 834;  Roman v. Vargas, 182 A.D.2d 543, 545, 582 N.Y.S.2d 1020).

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