ENRIQUEZ v. JOSEPH

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

Konnie K. ENRIQUEZ, Appellant, v. Jackson JOSEPH, et al., Respondents.

2018–01488

Decided: February 27, 2019

MARK C. DILLON, J.P., ROBERT J. MILLER, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ. Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Susan M. Jaffe], of counsel), for appellant. Russo & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated December 21, 2017.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On August 17, 2011, on Merrick Road at its intersection with Smith Lane in Seaford, a vehicle operated by the plaintiff and a vehicle operated by the defendant Jackson Joseph (hereinafter Jackson) and owned by the defendant Paul Joseph came into contact as the plaintiff was making a left turn from Smith Lane onto Merrick Road. It is undisputed that at the time of the accident, Jackson was traveling eastbound in the left lane of Merrick Road, and there was no traffic control device that governed his entrance into the intersection with Smith Lane. It is further undisputed that there was a stop sign governing the plaintiff's entrance from Smith Lane into the intersection with Merrick Road.

The plaintiff commenced this personal injury action against the defendants.  After joinder of issue, the defendants moved for summary judgment dismissing the complaint.  The defendants argued that the accident occurred as a result of the plaintiff's failure to yield the right-of-way to their vehicle, in violation of, inter alia, Vehicle and Traffic Law § 1142, and in failing to see what was there to be seen, namely, their vehicle which was traveling with the right-of-way and was approaching so closely as to constitute an immediate hazard.  The Supreme Court granted the defendants' motion, and the plaintiff appeals.

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526;  see Aponte v. Vani, 155 A.D.3d 929, 930, 64 N.Y.S.3d 123;  Baulete v. L & N Car Serv., Inc., 134 A.D.3d 753, 754, 22 N.Y.S.3d 86).  There can be more than one proximate cause of an accident (see Faust v. Gerde, 150 A.D.3d 1204, 52 N.Y.S.3d 898;  Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389;  Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604), and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550;  see Faust v. Gerde, 150 A.D.3d at 1204, 52 N.Y.S.3d 898).  The issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts (see Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d at 889, 922 N.Y.S.2d 550).

“Except when directed to proceed by a police officer, every driver of a vehicle approaching a stop sign shall stop ․ and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection” (Vehicle and Traffic Law § 1142[a] ).  “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” (Laino v. Lucchese, 35 A.D.3d 672, 672, 827 N.Y.S.2d 249;  see Fuertes v. City of New York, 146 A.D.3d 936, 937, 45 N.Y.S.3d 562;  Francavilla v. Doyno, 96 A.D.3d 714, 715, 945 N.Y.S.2d 425).  “A driver with the right-of-way is entitled to anticipate that a motorist will obey traffic laws which require him or her to yield” (Fuertes v. City of New York, 146 A.D.3d at 937, 45 N.Y.S.3d 562;  Luke v. McFadden, 119 A.D.3d 533, 987 N.Y.S.2d 909;  Francavilla v. Doyno, 96 A.D.3d at 715, 945 N.Y.S.2d 425).  “Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, ․ a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” (Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 [citations omitted];  see Fuertes v. City of New York, 146 A.D.3d at 937, 45 N.Y.S.3d 562;  Bennett v. Granata, 118 A.D.3d 652, 653, 987 N.Y.S.2d 424).

Here, the defendants demonstrated, prima facie, that the plaintiff was negligent in violating Vehicle and Traffic Law § 1142(a), when after stopping at the stop sign, she made a left turn into the path of oncoming traffic without yielding the right-of-way to the defendants' vehicle (see Fuertes v. City of New York, 146 A.D.3d at 937, 45 N.Y.S.3d 562;  Bennett v. Granata, 118 A.D.3d at 653, 987 N.Y.S.2d 424;  Francavilla v. Doyno, 96 A.D.3d at 715, 945 N.Y.S.2d 425).  The defendants established in support of their motion for summary judgment that Jackson was not at fault in the happening of the accident by further demonstrating that he was not speeding prior to the accident and only had seconds to avoid the plaintiff's vehicle, in which time he applied his brakes, honked his horn, and attempted to veer away from contact, but was unable to avoid the collision.  In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether Jackson was at fault in the happening of the accident.

Accordingly, we agree with the Supreme Court's determination to grant the defendants' motion for summary judgment dismissing the complaint.

DILLON, J.P., MILLER, LASALLE and IANNACCI, JJ., concur.

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