Perez v. Brux Cab Corp.

• Decision Date: 18 June 1998
• Citation: 674 N.Y.S.2d 343,251 A.D.2d 157
• Parties: , 1998 N.Y. Slip Op. 6130 Juanita PEREZ, et al., Plaintiffs-Appellants, v. BRUX CAB CORP., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 343

674 N.Y.S.2d 343

251 A.D.2d 157, 1998 N.Y. Slip Op. 6130

Juanita PEREZ, et al., Plaintiffs-Appellants, v. BRUX CAB CORP., et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

June 18, 1998.

S. Alan LeBlang, for Plaintiffs-Appellants.

Lawrence B. Goodman, for Defendants-Respondents.

Before SULLIVAN, J.P., and ROSENBERGER, RUBIN, WILLIAMS and MAZZARELLI, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (George Friedman, J.), entered January 23, 1998, which, to the extent appealed from, denied plaintiffs' motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, partial summary judgment granted to plaintiffs, and the matter remanded for a determination of damages.

In this automobile accident case, plaintiffs claim that the motion court erred in denying summary judgment because a prima facie case of defendants' negligence was established as a matter of law and defendants' opposition papers failed to raise any material issues of fact as to defendants' liability or plaintiffs' comparative negligence.

At approximately 4:30 PM, on April 28, 1997, in Long Island City, at the intersection of 22nd Street, which has two stop signs, and 41st Avenue, which has no stop signs, defendant Jhonny Jean, the driver of a yellow cab owned by defendant Brux Cab Corp., failed to stop at the stop signs on 22nd Street and collided with plaintiff Juanita Perez's automobile, which was traveling lawfully into the intersection along 41st Avenue. The front passenger corner of the cab collided with the front driver's side corner of the plaintiffs' car and dragged the car down 22nd Street. The fender, grille and radiator of the plaintiffs' car was crushed, the hood was buckled and the bumper was torn off. Juanita Perez and her two passengers, plaintiffs Carmen Aponte and Jessica Perez (the sister-in-law and daughter of Juanita Perez), sustained various back and knee injuries.

Plaintiffs submitted a fair amount of evidence, including affidavits and photographs, in support of their motion for summary judgment on liability. Juanita Perez's affidavit stated that she entered the intersection when the cab was about two car lengths away from the stop signs. She averred that from the time she first saw the cab till the time the two cars collided she had "no more than a second or two" to try and avoid the accident. The cab was traveling at a speed of more than 30 miles per hour and made no effort to avoid a collision. She heard no sound of brakes or screeching tires coming from the cab, suggesting that the cab had not made any effort to avoid her car.

Ms. Perez's description of the accident was confirmed in all pertinent details by the affidavits of two nonparty eyewitnesses, Phillip Velasquez and Mario Ponce. According to these witnesses, the cab was traveling down 22nd Street toward the intersection at a "very fast rate of speed". The cab slowed as it approached the stop signs, but instead of stopping, it proceeded into the intersection at a speed estimated as more than 30 miles per hour, colliding with the Perez car, which had entered the intersection at "a moderate rate of speed". The witnesses also said that the cab made no efforts to avoid the collision. The affidavits of Jessica Perez and Carmen Aponte told essentially the same story.

Juanita Perez's affidavit stated that immediately after the collision, she asked the cabdriver why he was driving so fast, why he failed to stop for the stop signs and why he failed to see the Perez car. The cab driver responded, "I'm sorry, it's all my fault." When the police arrived, Ms. Perez told them that the cabdriver had passed through the stop signs. The certified police report of the accident recorded defendant Jean's admissions that he did not stop at the stop signs and did not see plaintiffs' car.

In opposition to plaintiffs' motion for summary judgment, defendants only submitted an attorney's affidavit and an unsworn accident report prepared by the cab driver at his attorney's office on the day after the accident. Defendants alleged that general questions of fact existed regarding which party, if any, was negligent, whether either party's negligence was the proximate cause of the accident and whether the comparative-negligence principle applied. We find that defend...