Alija v Mondella

[*1] Alija v Mondella 2009 NY Slip Op 52531(U) [25 Misc 3d 1241(A)] Decided on December 10, 2009 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 10, 2009
Supreme Court, Richmond County

Naim Alija, Plaintiff(s),

against

Nancy Mondella, MICHAEL G. MONDELLA AND JOSEPH HASTINGS, Defendant(s).



100439/08

Judith N. McMahon, J.

This is an action for personal injuries arising out of a collision between a vehicle operated by defendant Joseph Hastings and a vehicle operated by defendant Michael Mondella and owned by Nancy Mondella. The accident occurred on August 5, 2007, when defendant Mondella was traveling southbound on Isabella Avenue and came into contact at the intersection of Stoneham Street with defendant Hasting's vehicle which was traveling eastbound on Stoneham Street. Plaintiff Naim Alija was a passenger in the vehicle operated by defendant Mondella and allegedly sustained serious injuries as a result of the collision. It is undisputed that traffic on Isabella Avenue at its intersection with Stoneham Street is controlled by a stop sign, while Stoneham Street at its intersection with Isabella Avenue is not regulated by any traffic control devices.

On or about January 25, 2008, plaintiff commenced this action and thereafter issue was joined and discovery was completed. Presently, defendant Hastings is moving for summary judgment seeking to dismiss the complaint on the grounds that (1) defendant Michael Mondella's violation of NYSVTL § 1142 and § 1172 was the sole proximate cause of the accident and rendered co-defendant Mondella negligent as a matter of law, and/or (2) plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d).

It is well settled that summary judgment should not be granted where there is any doubt as to the existence of a triable issue of fact (Phillips v Joseph Kantor & Co., 31 NY2d 307, 311 [1972]; Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]). In deciding whether a triable issue of fact exists, the evidence must be viewed in the light most favorable to the non-moving party (Rudnitsky v Robbins, 594 NYS2d 354, 355 [2d Dept. 1993]; Santiago v Frito-Lay, Inc., 235 AD2d 528, 529 [2d Dept. 1997]; Toure v Avis Rent a Car Sys., 98 NY2d 345, 353 [2002]). The burden of proof is initially on the movant to make a prima facie showing of entitlement to judgment as a matter of law by "producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]. If the movant succeeds in making this showing, then "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require [*2]a trial for resolution" (id.; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).A driver is in violation of NYS Vehicle and Traffic Law § 1142(a) and negligent as a matter of law when he or she "fails to yield the right-of-way after stopping at a stop sign controlling traffic" (Rahaman v Abodeledhman, 64 AD3d 552, 553 [2d Dept. 2009]; Klein v Crespo, 50 AD3d 745, 745 [2d Dept. 2008]). A driver operating his or her vehicle on a street governed by a stop sign is "required to see the oncoming traffic through the proper use of [his or] her senses" and yield to it (Yelder v Walters, 64 AD3d 762, 763-64 [2d Dept. 2009]. The driver with the right-of-way "is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield" (Rahaman, 64 AD3d at 553; Klein, 50 AD3d at 745-46). However, more than one proximate cause of an accident may exist (Cox v Nunez, 23 AD2d 427, 427 [2d Dept. 2005]). Under the doctrine of comparative negligence, "a driver who lawfully enters an intersection may nevertheless be found partially at fault for an accident if that driver fails to use reasonable care to avoid a collision with another vehicle at an intersection" (Rahaman, 64 AD3d at 553; Exime v Williams, 45 AD3d 633, 633 [2d Dept. 2007]).

Here, defendant Hastings has established his entitlement to judgment as a matter of law by submitting evidence which demonstrated that he had the right-of-way, that because defendant Mondella failed to yield the right-of-way upon entering the intersection in violation of NYS Vehicle and Traffic Law § 1142(a) he was negligent as a matter of law, and that defendant Mondella's negligence was the sole proximate cause of the accident (Rahaman, 64 AD3d at 553; Exime, 45 AD3d at 634; Yelder, 64 AD3d 762, 763-64). The question of whether defendant Mondella actually stopped at the stop sign is not dispositive, as the evidence revealed that whether or not he stopped at the stop sign, he failed to yield to defendant Hastings' vehicle, which had the right-of-way (Rahaman, 64 AD3d at 553; Exime, 45 AD3d at 633; Morgan v. Hachmann, 9 AD3d 400, 400 [2d Dept. 2004]).

In opposition, neither plaintiff nor defendants Mondella raised a triable issue of fact as to any alleged comparative negligence of defendant Hastings. Defendants Mondella contend that defendant Hastings' vehicle must have been traveling at considerable speed in order to flip defendant Mondella's vehicle. However, these assertions are speculative as defendant Mondella testified at his deposition that he did not see defendant Hastings' vehicle prior to the accident. He also failed to provide any kind of probative evidence such as an expert's affidavit to support such an inference. Furthermore, defendant Hastings testified at his deposition that he was traveling at a speed of fifteen miles an hour at the time of impact and attempted to avoid the collision by braking a second before the impact occurred. Given the extremely limited amount of time he had to react, "his testimony was sufficient to demonstrate that he acted reasonably" (Yelder, 64 AD3d at 764). Further, defendants Mondella's speculative and conclusory assertions were unsupported by any evidence in the record, and thus were insufficient to raise a triable issue of fact (Matthews-Thomas v. NYCTA, 4 AD3d 343, 343 [2d Dept. 2004]; Ishak v. Guzman, 12 AD3d 409, 409 [2d Dept. 2004]). Therefore, it is appropriate to grant defendant Hastings' motion for summary judgment on liability and to dismiss the complaint and all cross claims insofar as asserted against him.

The portion of defendant Hastings' motion pertaining to threshold has been rendered [*3]moot as a result of the dismissal of the complaint and all cross claims in so far as were asserted against him. However, it is recognized that plaintiff has succeeded in raising a triable issue of fact as to whether his facial scarring constituted a "significant disfigurement" in that a reasonable person would "regard the condition as unattractive, objectionable, or as the object of pity and scorn" (Lynch v Iqbal, 56 AD3d 621, 622 [2d Dept. 2008]. Because plaintiff established a prima facie case that his facial scarring is a "serious injury" within the meaning of Insurance Law § 5102(d), he "is entitled to seek recovery for all injuries incurred as a result of the accident" (O'Neill v O'Neill, 261 AD2d 459, 460 [2d Dept. 1999].

Accordingly, it is,

ORDERED that defendant Hastings' motion for summary judgment, dismissing the complaint and all cross claims insofar as asserted against him on the ground of liability, is granted, and it is further ordered that the complaint and all cross claims as are asserted against defendant Hastings be dismissed.

ORDERED that any and all additional requests for relief are hereby denied and it is further ordered that the Clerk enter judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: December 10, 2009E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court