Miglionico v. Leroy Holdings Co., Inc.

• Decision Date: 04 November 2010
• Citation: 78 A.D.3d 1306,909 N.Y.S.2d 829
• Parties: Matthew W. MIGLIONICO, Appellant, v. LEROY HOLDINGS COMPANY, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 829

78 A.D.3d 1306

Matthew W. MIGLIONICO, Appellant,

v.LEROY HOLDINGS COMPANY, INC., et al., Respondents.

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

Nov. 4, 2010.

Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (John G. Rusk of counsel), for appellant.

Malapero & Prisco, L.L.P., New York City(Mark A. Bethmann of counsel), for respondents.

Before: PETERS, J.P., ROSE, LAHTINEN, McCARTHY and GARRY, JJ.

ROSE, J.

Appeal from an order of the Supreme Court(Zwack, J.), entered July 27, 2009 in Ulster County, which granted defendants' motion for summary judgment dismissing the complaint.

Plaintiff was driving a large box truck south on State Route 122 when he failed to stop at a stop sign at a T-intersection with State Route 11 in the Town of Burke, Franklin County.He entered the intersection and struck a beverage delivery truck owned by defendantLeroy Holdings Company, Inc. and operated by John Warren, an employee of defendantCrystal Rock Spring Water Company.Warren had been driving east on Route 11, and he had no traffic control signs or devices restricting his eastbound travel through the intersection.Plaintiff commenced this action seeking to recover damages for the injuries he sustained in the collision.After joinder of issue and discovery,defendants moved for summary judgment dismissing the complaint against them.Supreme Court granted the motion, and plaintiff appeals.

We affirm.Defendants established that plaintiff's failure to yield the right-of-way was the sole proximate cause of the accident ( seeColaruotolo v. Crowley,290 A.D.2d 863, 864, 736 N.Y.S.2d 525[2002];Matt v. Tricil [N.Y.], Inc.,260 A.D.2d 811, 812, 687 N.Y.S.2d 828[1999] ).Warren testified at his examination before trial that he had the right-of-way as he proceeded east on Route 11, he was traveling the posted speed limit of 55 miles per hour, he was paying attention to the road ahead and he was not otherwise distracted.As Warren reached the middle of the intersection, he saw plaintiff's vehicle cross the westbound lane of Route 11 just before it collided with the rear axle area of his vehicle.Although plaintiff had no memory of the accident, a witness saw him approach the intersection "going too fast to stop" and then sliding out into Route 11 where he struck Warren's vehicle in Warren's eastbound lane.

In opposition to the motion for summary judgment, plaintiff claimed issues of fact with respect to whether Warren kept a proper lookout and whether Warren's speed upon entering the intersection was reasonable.We note, however, that the driver of a vehicle with the right-of-way " 'is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield' "( Matt v. Tricil [N.Y.], Inc.,260 A.D.2d at 812, 687 N.Y.S.2d 828, quotingNamisnak v. Martin,244 A.D.2d 258, 260, 664 N.Y.S.2d 435[1997];seeHorton v. Warden,32 A.D.3d 570, 572, 819 N.Y.S.2d 356[2006];Garnsey v. Bujanowski,13 A.D.3d 857, 857-858, 786 N.Y.S.2d 632[2004] ).In this regard, "a driver has 'no duty to watch for and avoid a driver who might fail to stop or to proceed with due caution at a stop sign' "( Doxtader v. Janczuk,294 A.D.2d 859, 859-860, 741 N.Y.S.2d 368[2002], lv. denied99 N.Y.2d 505, 755 N.Y.S.2d 712, 785 N.E.2d 734[2003], quotingPerez v. Brux Cab Corp.,251 A.D.2d 157, 159, 674 N.Y.S.2d 343[1998];seeFernet v. Morvillo,30 A.D.3d 670, 672, 815 N.Y.S.2d 795[2006] ).

Plaintiff has offered no evidence that, after he failed to stop at the stop sign and began to slide across the intersection, Warren had time to take evasive action.Instead, the evidence is that Warren was already in the intersection when he observed plaintiff pass through the stop sign and, a "split second" later, collide with the rear axle area of the left side of his truck.Plaintiff also failed to come forward with evidence of any condition that would have required Warren to reduce his speed as he approached the intersection ( seePlatt v. Wolman,29 A.D.3d 663, 663, 816 N.Y.S.2d 121[2006];Matt v. Tricil [N.Y.], Inc.,260 A.D.2d at 812, 687 N.Y.S.2d 828;Wilke v. Price,221 A.D.2d 846, 847, 633 N.Y.S.2d 686[1995];see also...