Khan v. Nelson

• Decision Date: 22 December 2009
• Docket Number: 2009-01122,2008-07836
• Citation: 68 A.D.3d 1062,2009 NY Slip Op 9621,892 N.Y.S.2d 167
• Parties: MEHRBAN KHAN, Respondent, v. LIONEL NELSON et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

68 A.D.3d 1062

2009 NY Slip Op 9621

892 N.Y.S.2d 167

MEHRBAN KHAN, Respondent, v. LIONEL NELSON et al., Appellants, et al., Defendants.

2008-07836

2009-01122

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

Decided December 22, 2009.

In an action to recover damages for personal injuries, the defendants Lionel Nelson and Aspirity Transportation Corp. appeal, as limited by their brief, (1) from so much of an order of the Supreme Court, Kings County (Starkey, J.), dated June 25, 2008, as granted the plaintiff's motion for summary judgment on the issue of liability as against them, and (2) from so much of an order of the same court dated October 22, 2008, as, upon reargument, adhered to its prior determination and, in effect, denied that branch of their motion which was for leave to renew.

Ordered that the appeal from the order dated June 25, 2008 is dismissed, as that order was superseded by the order dated October 22, 2008, made upon reargument; and it is further,

Ordered that the order dated October 22, 2008 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff allegedly sustained personal injuries when the vehicle in which he was a passenger collided at an intersection in Queens County with a vehicle operated by the defendant Lionel Nelson and owned by the defendant Aspirity Transportation Corp. (hereinafter Aspirity). Only the road in which the Nelson vehicle was traveling as it approached the intersection was governed by a stop sign.

The plaintiff established his entitlement to judgment as a matter of law by demonstrating, prima facie, that Nelson was negligent in failing to yield the right-of-way (see Vehicle and Traffic Law § 1142 [a]; Jaramillo v Torres, 60 AD3d 734, 735 [2009]; Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 651 [2008]). In opposition, Nelson and Aspirity failed to submit evidence sufficient to raise a triable issue of fact (see Gorelik v Laidlaw Tr., Inc., 50 AD3d 739 [2008]). "The question of whether [Nelson] stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop" (McCain v Larosa, 41 AD3d 792, 793 [2007] [internal quotation marks omitted]; see Marcel v Chief Energy Corp., 38 AD3d 502, 503 [2007]; Morgan v Hachmann, 9 AD3d 400 [2004]). Additionally, the contention of Nelson and Aspirity that the driver of the vehicle in which the plaintiff was a passenger was speeding was speculative (see Yelder v Walters, 64 AD3d 762, 765 [2009]; Batts v Page, 51 AD3d 833, 834 [2008]; Meliarenne v Prisco, 9 AD3d 353, 354 [2004]). Therefore, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability as against Nelson and Aspirity and, upon reargument, properly adhered to that determination.

A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e]...