Luke v. McFadden

• Decision Date: 02 July 2014
• Citation: 119 A.D.3d 533,2014 N.Y. Slip Op. 04906,987 N.Y.S.2d 909
• Parties: Ronald LUKE, respondent, v. Elanda McFADDEN, defendant, Stephen Small–Warner, appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 533

987 N.Y.S.2d 909

2014 N.Y. Slip Op. 04906

Ronald LUKE, respondent,

v. Elanda McFADDEN, defendant,Stephen Small–Warner, appellant.

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

July 2, 2014.

James G. Bilello, Westbury, N.Y. (Patricia McDonagh of counsel), for appellant.

Richard J. Katz, LLP, New York, N.Y. (Jonathan A. Rapport of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Stephen Small–Warner appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated September 12, 2013, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Stephen Small–Warner for summary judgment dismissing the complaint insofar as asserted against him is granted.

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 1172(a), and is negligent as a matter of law ( see Francavilla v. Doyno, 96 A.D.3d 714, 715, 945 N.Y.S.2d 425;Zuleta v. Quijada, 94 A.D.3d 876, 877, 943 N.Y.S.2d 111;Singh v. Singh, 81 A.D.3d 807, 808, 916 N.Y.S.2d 527;Goemans v. County of Suffolk, 57 A.D.3d 478, 479, 868 N.Y.S.2d 753;Rossani v. Rana, 8 A.D.3d 548, 549, 779 N.Y.S.2d 211). Moreover, the driver with the right of way is entitled to anticipate that the driver subject to the traffic control device would obey the traffic law ( see Gallagher v. McCurty, 85 A.D.3d 1109, 1110, 925 N.Y.S.2d 897;Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282;Martin v. Ali, 78 A.D.3d 1135, 1136, 912 N.Y.S.2d 610). A driver traveling with the right of way may be entitled to summary judgment if he can demonstrate that the driver subject to the traffic control device proceeded through the intersection and failed to yield the right of way ( see Figueroa v. Diaz, 107 A.D.3d 754, 755, 967 N.Y.S.2d 109;Barbato v. Maloney, 94 A.D.3d 1028, 1029, 943 N.Y.S.2d 204).

However, there can be more than one proximate cause of an accident ( see Rodriguez v. Klein, 116 A.D.3d 939, 983 N.Y.S.2d 851;Incle v. Byrne–Lowell, 115 A.D.3d 709, 981 N.Y.S.2d 617;Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604). Evidence that one driver “ran” a stop sign does not preclude a finding that comparative negligence on the part of the other driver contributed to the accident ( see Incle v. Byrne–Lowell, 115 A.D.3d at 709, 981 N.Y.S.2d 617;Cox v. Nunez, 23 A.D.3d at 427, 805 N.Y.S.2d 604). Therefore, “ ‘a driver who lawfully enters an intersection ... may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection’ ” ( Sirot v. Troiano, 66 A.D.3d 763, 764, 886 N.Y.S.2d 504, quoting Siegel v. Sweeney, 266 A.D.2d 200, 202, 697 N.Y.S.2d 317;see Antaki v. Mateo, 100 A.D.3d 579, 580, 954 N.Y.S.2d 540;Amalfitano v. Rocco, 100 A.D.3d 939, 940, 954 N.Y.S.2d 644;Exime v. Williams, 45 A.D.3d 633, 633, 845 N.Y.S.2d 450). “A driver is required to see that which through proper use of his or her senses he or she should have seen” ( Williams v. Hayes, 103 A.D.3d 713, 714, 959 N.Y.S.2d 713 [internal quotation marks omitted]; Klein v. Crespo, 50 A.D.3d 745, 745, 855 N.Y.S.2d 633).

Here, in support of his motion for summary judgment dismissing the complaint insofar as asserted against him, the defendant Stephen Small–Warner made a prima facie showing that he had the right of way and was entitled to anticipate that the defendant Elanda McFadden would obey the traffic laws. The fact that McFadden failed to stop demonstrated that she violatated Vehicle and Traffic Law §§ 1142(a) and 1172(a), which constituted negligence as a matter of law ( see Francavilla v. Doyno, 96 A.D.3d 714, 715, 945 N.Y.S.2d 425;Gallagher v. McCurty, 85 A.D.3d at 1110, 925 N.Y.S.2d 897;Pollack v. Margolin, 84 A.D.3d at 1342, 924 N.Y.S.2d 282;Martin v. Ali, 78 A.D.3d at 1136, 912 N.Y.S.2d 610). The plaintiff, who was a passenger in the vehicle driven by Small–Warner, failed to raise a triable issue of fact as to any alleged comparative fault on said defendant's part. Small–Warner's deposition testimony that he did not see the...