Tesoro v Volpe

[*1] Tesoro v Volpe 2005 NY Slip Op 50089(U) Decided on January 20, 2005 Supreme Court, Kings County Schmidt, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2005
Supreme Court, Kings County

Daniel Tesoro, by his mother and natural guardian, Laura Palazzo a/k/a Laura Tesoro, Laura Palazzo a/k/a Laura Tesoro, individually, Lee Anthony Ragusa, by his mother and natural guardian, Maria Tereza Ragusa and Maria Ragusa, individually, Plaintiffs,

against

Joseph Volpe, et al., Defendants.



7159/03

David Schmidt, J.

Upon the foregoing papers, the motion by defendant Vicenzo Ragusa for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint and all cross claims insofar as asserted against him is granted.

On December 28, 2002, the infant plaintiffs, Daniel Tesoro and Lee Anthony Ragusa, were allegedly injured in an automobile accident when the automobile in which they were passengers was struck by a vehicle owned by defendant New York Cheese and Pasta Corp. (Pasta) and operated by defendant Joseph Volpe (Volpe). The accident occurred at the intersection of 81st Street and 13th Avenue in Brooklyn. Thereafter, their [*2]mothers, Laura Palazzo and Maria Tereza Ragusa, respectively, commenced this negligence action on their behalf against Volpe, Pasta, and Vicenzo Ragusa (the operator of the automobile in which the infants were riding), among others.

In his motion, Vicenzo Ragusa (Ragusa) contends that he was not negligent as a matter of law since "Volpe failed to stop at the stop sign located at the subject intersection due to alleged brake failure and struck the Ragusa vehicle". According to Ragusa's deposition testimony, "he had no traffic control devices at the subject intersection" and, as he approached the intersection, he was looking straight ahead. After he had proceeded into the intersection, his vehicle was struck in the rear right side by the Volpe vehicle. According to Volpe's deposition testimony, as he neared the intersection, perpendicular to Ragusa's direction of travel, he observed a stop sign and applied his brakes. Volpe further testified that the brakes did not work. Movant argues that, since "Volpe concededly failed to stop at the subject intersection, he is negligent as a matter of law" and the complaint against him should be dismissed.

In opposition to the motion, plaintiffs contend that a question of fact exists as to whether Ragusa operated his vehicle in a negligent manner as he approached the intersection. Plaintiffs fault Ragusa for his failure "to look and observe [ ] the traffic to his left or his right as any reasonable driver should have done". Plaintiffs dismiss Esperanza v Loor (299 AD2d 167 [2002]) and other cases cited by movant because they do not believe "that the Court meant to decide that a driver may literally enter an intersection 'blindfolded'. . . merely because he has the right of way".

The evidence submitted establishes, as a matter of law, that, as between Joseph Volpe and Vicenzo Ragusa, the cause of the accident was the negligence of Joseph Volpe, who failed to obey the stop sign on 13th Avenue at the intersection in question. Vicenzo Ragusa, who was driving on 13th Avenue, where there was no stop sign had the right of way and was therefore entitled to anticipate that other drivers would obey the traffic laws requiring them to yield (see Jordan v City of New York, __AD3d__, 784 NYS2d 861 [2004]; Jenkins v Alexander, 9 AD3d 286 [2004]; Morgan v Hachmann, 9 AD3d 400 [2004]; Murchison v Incognoli, 5 AD3d 271 [2004]; Matthews-Thomas v New York City Tr. Auth., 4 AD3d 343 [2004]). Plaintiffs offer no evidence, for example, that Joseph Volpe stopped at the stop sign or that Vicenzo Ragusa was traveling at a speed greater than the speed limit (cf. Kaplan v Vanderhans, 2004 WL 2546798). Accordingly, the motion is granted, the complaint and all cross claims against defendant Vicenzo Ragusa are dismissed and the action is severed and continued against the remaining defendants.

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C. [*3]