Saldiran v Htwe

[*1] Saldiran v Htwe 2013 NY Slip Op 50367(U) Decided on March 11, 2013 Supreme Court, Kings County Sweeney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2013
Supreme Court, Kings County

Sabahittin Saldiran, Plaintiff,

against

Maung M. Htwe, Defendant.



5567/12



John C. Buratti & Associates

Attorneys for Defendant

150 Broadway, Suite 1400

New York, New York 10038

Morrison & Wagner, LLP

Attorneys for Plaintiff

49 West 38th Street, 15th floor

New York, New York 10018

Peter P. Sweeney, J.

DECISION/ORDER

The following papers numbered 1 to _2 _ were read on this motion:

Papers: [*2]

Notice of Motion/Order to Show CauseAffidavits/Affirmations/Exhibits........................................ Answering Affirmations/Affidavits/Exhibits.................................. Reply Affirmations/Affidavits/Exhibits.......................................... Other...............................................................................................Numbered

12

Upon the foregoing papers the motion is decided as follows:

In this personal injury action arising out of a two car collision that occurred at the intersection of Avenue S and West 9th Street, Brooklyn, New York, plaintiff, Sabahittin Saldiran, the driver of one of the vehicles, moves for partial summary judgment on the issue of liability.

In support of the motion, plaintiff submitted his own affidavit stating that at the time of the accident, he was traveling in an easterly direction and Avenue S and was proceeding through the intersection with the right of way, when his vehicle was struck by defendant's vehicle, which was traveling north direction on West 9th Street. He stated that the only traffic control device at the intersection was a stop sign, which controlled traffic entering the intersection from West 9th Street in the direction defendant was proceeding. Plaintiff did not state whether he observed defendant's vehicle prior to the impact or whether he ever attempted to avoid the collision.

In opposition to the motion, defendant submitted only the affirmation of his attorney, who lacked personal knowledge of the facts.

"A driver who fails to yield the right of way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law." See Thompson v. Schmitt, 74 AD3d 789, 789, 902 N.Y.S.2d 606 (2nd Dep't 2010); see Francavilla v. Doyno, 96 AD3d 714, 715, 945 N.Y.S.2d 425 (2nd Dep't 2012); Singh v. Singh, 81 AD3d 807, 916 N.Y.S.2d 527 (2nd Dep't 2011); Czarnecki v. Corso, 81 AD3d 774, 775, 916 N.Y.S.2d 828 (2nd Dep't 2011; Martin v. Ali, 78 AD3d 1135, 912 N.Y.S.2d 610 (2nd Dep't 2010); Rahaman v. Abodeledhman, 64 AD3d 552, 553, 883 N.Y.S.2d 259 (2nd Dep't 2009); Klein v. Crespo, 50 AD3d 745, 745, 855 N.Y.S.2d 633 (2nd Dep't 2008). Although plaintiff presented uncontroverted evidence that the defendant driver negligently failed to yield the right-of-way, plaintiff did not demonstrate his freedom from negligence as a matter of law. In Thoma v. Ronai, 82 NY2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690 [1993], affg. 189 AD2d 635, 592 N.Y.S.2d 333 [1993], the Court of Appeals held that even where defendant's negligence is established as a matter of law, the plaintiff is not entitled to summary judgment as to liability where there remain questions of fact regarding his or her comparative fault. This rule of law has been consistently followed in this department. See, e.g.,Shui-Kwan Lui v. Serrone, 959 N.Y.S.2d 270, 272 (2nd Dep't 2013); Pieper v. Hussein, 102 AD3d 760, 761, 957 N.Y.S.2d 877 (2nd Dep't 2013); Maiello v. Kirchner, 98 AD3d 481, 483, 949 N.Y.S.2d 200, 203 (2nd Dep't 2013); Hazzard v. Burrowes, 95 AD3d 829, 830-831, 943 N.Y.S.2d 213, 214 - 215 (2nd Dep't 2012); Hernandez v. Tepan, 92 AD3d 721, [*3]722, 938 N.Y.S.2d 475, 476 (2nd Dep't 2012); Gardella v. Esposito Foods, Inc., 80 AD3d 660, 914 N.Y.S.2d 678 (2nd Dep't 2011).

Here, the fact that defendant failed to yield the right of way at the intersection does "does not preclude a finding that comparative negligence by [plaintiff] contributed to the accident." See Romano v. 202 Corp., 305 AD2d 576, 577, 759 N.Y.S.2d 365 (2d Dep't 2003); Bodner v. Greenwald, 296 AD2d 564, 745 N.Y.S.2d 711 (2d Dep't 2002); Siegel v. Sweeney, 266 AD2d 200, 697 N.Y.S.2d 317 (2d Dep't 1999). A driver with the right-of-way has a duty to use reasonable care to avoid a collision. Id.; see also, Cox v. Nunez, 23 AD3d 427, 427—428, 805 N.Y.S.2d 604 (2nd Dep't 2005), and plaintiff failed to support his motion with sufficient proof demonstrating that he used reasonable care in attempting to avoid the collision. As stated above, no where in his affidavit did plaintiff address what he observed prior to the impact and whether he attempted to avoid the collision. Plaintiff's motion must therefore be denied, regardless of the sufficiency of the defendant's opposition papers. Winegrad v. New York University Medical Center, 64 NY2d 851, 853, 476 N.E.2d 642, 64, 487 N.Y.S.2d 316, 318 (1985).

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment on the issue of liability is DENIED.

This constitutes the decision and order of the court.

Dated: March 11, 2013

__________________________________

PETER P. SWEENEY, A.J.S.C.