Buissereth v Dittrich

[*1] Buissereth v Dittrich 2008 NY Slip Op 51573(U) [20 Misc 3d 139(A)] Decided on July 10, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2007-1713 K C.

Luckner Buissereth, Respondent,

against

Timothy Dittrich, Defendant, -and- JEANMIL JEANTY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered August 30, 2007. The order denied defendant Jeanmil Jeanty's motion for summary judgment.

Order reversed without costs and motion by defendant Jeanmil Jeanty for summary judgment dismissing the complaint as against him granted.

In this action to recover damages for personal injuries, plaintiff, who was a passenger in a vehicle owned and operated by defendant Jeanmil Jeanty, alleges that he sustained serious injuries when a vehicle owned and operated by defendant Timothy Dittrich came into contact with the Jeanty vehicle. The traffic proceeding in the direction in which Dittrich was traveling was controlled by a stop sign at the intersection, while traffic proceeding in the direction in which the Jeanty vehicle was traveling was not controlled by any traffic device. Jeanty moved for summary judgment dismissing the complaint as against him. The motion was denied and this appeal ensued.

A driver who fails to yield the right-of-way after stopping at an intersection controlled by a stop sign is in violation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law (see Exime v Williams, 45 AD3d 633 [2007]; Gergis v Miccio, 39 AD3d 468 [2007]). In the instant case, Jeanty established his prima facie entitlement to judgment as a matter of law by submitting evidence indicating that Dittrich failed to properly observe and yield to cross traffic before entering the intersection, in violation of the statute. As the driver with the right-of-way, Jeanty was entitled to assume that Dittrich would obey the traffic laws requiring him to yield (see Hull v Spagnoli, 44 AD3d 1007 [2007]; McCain v Larosa, 41 AD3d 792 [2007]). Plaintiff [*2]argued in opposition to the motion that Jeanty testified at his deposition that he did not see Dittrich go through the stop sign. However, the question of whether Dittrich actually stopped at the stop sign before proceeding into the intersection is not dispositive of the matter since the evidence indicated that, whether or not he stopped at the stop sign, he nonetheless failed to yield to a vehicle with the right-of-way (see McCain v Larosa, 41 AD3d 792 [2007], supra).
Although a driver with the right-of-way also has a duty to use reasonable care to avoid a collision (see Cox v Nunez, 23 AD3d 427 [2005]), plaintiff failed to raise any triable of issue of fact in opposition to the motion, with respect to any comparative negligence on the part of Jeanty. Accordingly, the court below should have granted Jeanty's motion for summary judgment dismissing the complaint as against him.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: July 10, 2008