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Mermelstein v. Able Bus

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


January 12, 2010

SHMUEL MERMELSTEIN, APPELLANT,
v.
ABLE BUS, INC., ET AL., RESPONDENTS, ET AL., DEFENDANTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 19, 2008, which denied his motion for summary judgment on the issue of liability as against the defendants Able Bus, Inc., and Jorge M. Vega.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

FRED T. SANTUCCI, J.P., RUTH C. BALKIN, RANDALL T. ENG and CHERYL E. CHAMBERS, JJ.

(Index No. 6807/07)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

A vehicle operated by the defendant Jorge M. Vega and owned by the defendant Able Bus, Inc. (hereinafter Able), collided with a vehicle owned and operated by the plaintiff at the intersection of Avenue J and East 3rd Street in Brooklyn. The defendant driver was traveling on East 3rd Street, which is governed by a stop sign at its intersection with Avenue J. The plaintiff was traveling on Avenue J, which is not governed by a traffic control signal at its intersection with East 3rd Street.

The plaintiff failed to submit evidence sufficient to establish his entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Although the defendant driver's direction of travel was governed by a stop sign, a triable issue of fact exists as to whether the plaintiff was free from negligence (see Virzi v Fraser, 51 AD3d 784; Campbell-Lopez v Cruz, 31 AD3d 475; Hernandez v Bestway Beer & Soda Distrib., 301 AD2d 381). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability against Able and the defendant driver.

SANTUCCI, J.P., BALKIN, ENG and CHAMBERS, JJ., concur.

20100112

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