Pivetz v. Brusco

Decision Date14 December 2016
Citation145 A.D.3d 806,43 N.Y.S.3d 457,2016 N.Y. Slip Op. 08383
Parties Tracy L. PIVETZ, appellant v. Francesco BRUSCO, respondent.
CourtNew York Supreme Court — Appellate Division

145 A.D.3d 806
43 N.Y.S.3d 457
2016 N.Y. Slip Op. 08383

Tracy L. PIVETZ, appellant
v.
Francesco BRUSCO, respondent.

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

Dec. 14, 2016.


43 N.Y.S.3d 458

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

James G. Bilello (Russo & Tambasco, Melville, NY [Yamile Al–Sullami], of counsel), for respondent.

MARK C. DILLON, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

145 A.D.3d 806

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Baynes, J.), dated October 29, 2015, which denied her motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence is granted.

On January 26, 2014, a vehicle operated by the plaintiff collided

145 A.D.3d 807

with a vehicle operated by the defendant at the intersection of Bath Avenue and Bay 7th Street in Brooklyn. The plaintiff's vehicle was traveling on Bath Avenue, which was not governed by any traffic control devices at this intersection, and the defendant was traveling on Bay 7th Street, which was governed by a stop sign. The plaintiff allegedly sustained personal injuries as a result of the collision and commenced this action against the defendant. The plaintiff moved for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence, arguing that the defendant's failure to yield the right-of-way was the sole proximate cause of the accident. The Supreme Court denied the motion. The plaintiff appeals, and we reverse.

A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (see Vehicle and Traffic Law § 1141 ; Mu–Jin Chen v. Cardenia, 138 A.D.3d 1126, 1127, 31 N.Y.S.3d 134 ; Smith v. Omanes, 123 A.D.3d 691, 998 N.Y.S.2d 198 ; Williams...

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  • Fernandez v. Am. United Transp., Inc., 2017–13005
    • United States
    • New York Supreme Court Appellate Division
    • November 13, 2019
    ...707 yielding the right-of-way to the vehicle driven by Abreu, thereby violating Vehicle and Traffic Law § 1142(a) (see Pivetz v. Brusco , 145 A.D.3d 806, 807, 43 N.Y.S.3d 457 ; Zhubrak v. Petro , 122 A.D.3d 922, 923, 998 N.Y.S.2d 85 ; Smalls v. Adams , 118 A.D.3d 693, 694, 987 N.Y.S.2d 86 )......
  • Miliotto v. Ciano
    • United States
    • United States State Supreme Court (New York)
    • December 13, 2019
    ...Corp, 172 A.D.3d 1130, 100 N.Y.S.3d 320 [2d Dept 2019]; Aponte v Vani, 155 A.D.3d 929, 64 N.Y.S.3d 123 [2d Dept 2017]; Pivetz v Brusco, 145 A.D.3d 806, 43 N.Y.S.3d 457 [2d Dept 2016]). Although a plaintiff is no longer required to show freedom from comparative fault to establish his or her ......
  • Ashby v. Estate of Encarnacion, 2019-03541
    • United States
    • New York Supreme Court Appellate Division
    • December 11, 2019
    ...Kraynova v. Lowy , 166 A.D.3d at 602, 87 N.Y.S.3d 653 ; Mastricova v. Ruderman , 164 A.D.3d at 1435, 82 N.Y.S.3d 546 ; Pivetz v. Brusco , 145 A.D.3d 806, 43 N.Y.S.3d 457 ; Voskin v. Lemel , 52 A.D.3d 503, 859 N.Y.S.2d 489 ).178 A.D.3d 765 In opposition, the defendants failed to raise a tria......
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    • May 15, 2019
    ...where he or she fails to see that which through the proper use of his or her senses he or she should have seen (see Pivetz v. Brusco, 145 A.D.3d 806, 807, 43 N.Y.S.3d 457 ; Estate of Cook v. Gomez, 138 A.D.3d 675, 677, 30 N.Y.S.3d 148 ; Rodriguez v. Klein, 116 A.D.3d 939, 983 N.Y.S.2d 851 ;......
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