KLEIN v. BYALIK

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

Judy KLEIN, et al., Appellants, v. Mikhail BYALIK, Respondent.

Decided: November 10, 2003

FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, ROBERT W. SCHMIDT and BARRY A. COZIER, JJ. Kagan and Gertel, Brooklyn, N.Y. (Irving Gertel of counsel), for appellants. Callahan & Malone, Mineola, N.Y. (Kimberley A. Carpenter of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Dowd, J.), dated December 11, 2002, which denied their motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the motion is granted.

 In this case involving a motor vehicle accident at an intersection, the street on which the defendant was driving had a stop sign while the street on which the plaintiff Judy Klein (hereinafter the plaintiff) was driving did not.   In support of her motion for summary judgment, the plaintiff established that the defendant failed to properly observe and yield to cross traffic before proceeding into the intersection (see Vehicle and Traffic Law §§ 1142[a] and 1172[a];  Disher v. Ahern, 294 A.D.2d 393, 741 N.Y.S.2d 739;  Puccio v. Caputo, 272 A.D.2d 387, 707 N.Y.S.2d 478;  Gillinder v. Hemmes, 298 A.D.2d 493, 748 N.Y.S.2d 786).   The plaintiff, who had the right-of-way, was entitled to assume that the defendant would obey the traffic laws requiring him to yield (see Stiles v. County of Dutchess, 278 A.D.2d 304, 717 N.Y.S.2d 325;   Cenovski v. Lee, 266 A.D.2d 424, 698 N.Y.S.2d 868).   The defendant's contention that there is a triable issue of fact as to the plaintiff's negligence because she failed to see that which by the proper use of her senses she should have seen is mere speculation, insufficient to defeat the motion (see Parisi v. Mitchell, 280 A.D.2d 589, 720 N.Y.S.2d 806;  Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121).   Accordingly, summary judgment should have been granted to the plaintiff.

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