Bennett v. Granata

• Decision Date: 04 June 2014
• Citation: 987 N.Y.S.2d 424,118 A.D.3d 652,2014 N.Y. Slip Op. 03968
• Parties: Tacelia A. BENNETT, appellant, v. Ralph F. GRANATA, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 652

987 N.Y.S.2d 424

2014 N.Y. Slip Op. 03968

Tacelia A. BENNETT, appellant,

v.Ralph F. GRANATA, et al., respondents, et al., defendant.

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

June 4, 2014.

Wingate, Russotti & Shapiro, LLP, New York, N.Y. (Joseph P. Stoduto of counsel), for appellant.

Richard T. Lau & Associates, LLP, Jericho, N.Y. (Gene W. Wiggins of counsel), for respondents.

RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Saitta, J.), entered May 13, 2013, as denied her motion for summary judgment on the issue of liability against the defendants Ralph F. Granata and Mouse Action Towing Service, Inc.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability against the defendants Ralph F. Granata and Mouse Action Towing Service, Inc., is granted.

The plaintiff was operating her vehicle eastbound on Glenwood Road in Brooklyn and entered its intersection with East 52nd Street, where her vehicle came into contact with a tow truck owned and operated by the defendants Mouse Action Towing Service, Inc., and Ralph F. Granata (hereinafter together the towing defendants), respectively, which was traveling northbound on East 52nd Street. The plaintiff's vehicle then struck a third vehicle owned and operated by defendant Maksim Zelenskiy. It is undisputed that traffic traveling east and west on Glenwood Road was not controlled by any traffic control devices at its intersection with East 52nd Street on the date of the accident, while traffic traveling north and south on East 52nd Street at its intersection with Glenwood Road was controlled by a stop sign.

The plaintiff commenced this action to recover damages for personal injuries, alleging negligence. The plaintiff moved for summary judgment on the issue of liability against the towing defendants. In an order entered May 13, 2013, the Supreme Court, inter alia, denied the plaintiff's motion, finding that there were triable issues of fact as to the plaintiff's comparative fault.

The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield ( see Regans v. Baratta, 106 A.D.3d 893, 965 N.Y.S.2d 171;Ahern v. Lanaia, 85 A.D.3d 696, 924 N.Y.S.2d 802;Mohammad v. Ning, 72 A.D.3d 913, 914, 899 N.Y.S.2d 356;Loch v. Garber, 69 A.D.3d 814, 816, 893 N.Y.S.2d 233). However, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection, including keeping a proper lookout and to see what can be seen through the proper use of his or her senses ( see Regans v. Baratta, 106 A.D.3d at 893, 965 N.Y.S.2d 171;see also Todd v. Godek, 71 A.D.3d 872, 872, 895 N.Y.S.2d 861). “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...