SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
March 29, 2013
CATHERINE MCCALL AND MTA BUS COMPANY,
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), dated July 15, 2011, deemed from a judgment of the same court entered September 15, 2011 (see CPLR 5501 [c]).
Choudhury v McCall
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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2013
PRESENT: PESCE, P.J., WESTON and SOLOMON, JJ
The judgment, entered pursuant to the July 15, 2011 order granting defendants' motion for summary judgment on the issue of liability, dismissed the complaint.
ORDERED that the judgment is affirmed, without costs.
Plaintiff commenced this action to recover damages for injuries she had allegedly sustained on June 11, 2007 as a result of a collision between the car plaintiff was operating and a bus owned by defendant MTA Bus Company and operated by its driver, defendant Catherine McCall, at the intersection of 45th Avenue and Burling Street, in Brooklyn, New York. It is undisputed that a stop sign controlled traffic on Burling Street, the street on which plaintiff was driving. It is also undisputed that there was no stop sign at that intersection controlling traffic on 45th Avenue, the street on which defendants' bus was traveling. Defendants moved for summary judgment dismissing the complaint. Plaintiff appeals from an order of the Civil Court dated July 15, 2011 which granted defendants' motion. A judgment dismissing the complaint was subsequently entered on September 15, 2011, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
"A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law" (Gergis v Miccio, 39 AD3d 468, 468 ; see Exime v Williams, 45 AD3d 633, 633 ). A driver is required to "see what is there to be seen . . . and a driver who has the right of way is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield" (Laino v Lucchese, 35 AD3d 672, 672 ; see Gergis v Miccio, 39 AD3d at 468; see also Martin v Ali, 78 AD3d 1135 ; Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650 ).
Defendants made a prima facie showing of entitlement to summary judgment on the issue of liability by submitting evidence in support of their motion, including plaintiff's testimony at the statutory hearing and at her deposition, which established that plaintiff had failed to properly observe and yield the right-of-way to cross traffic before she had proceeded into the intersection (see Rankel v Saccardo, 100 AD3d 613 ; Zuleta v Quijada, 94 AD3d 876 ; Martin v Ali, 78 AD3d 1135). As the driver with the right-of-way, McCall was entitled to anticipate that plaintiff would obey the traffic law requiring her to yield (see Martin v Ali, 78 AD3d 1135; Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650). It is immaterial that plaintiff may have stopped at the stop sign before proceeding into the intersection, because even if she did stop, she ultimately failed to yield the right-of-way in violation of Vehicle and Traffic Law § 1142 (a) (see Martin v Ali, 78 AD3d 1135; Exime v Williams, 45 AD3d 633). Although a driver with the right-of-way does have a duty to use reasonable care to avoid a collision (see Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650; Cox v Nunez, 23 AD3d 427 ), plaintiff's counsel's suggestion in the opposition papers that defendant McCall may have been negligent in the operation of the bus did not raise a triable issue of fact, as it is unsupported by the record and is based upon mere speculation (see Exime v Williams, 45 AD3d 633).
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: March 29, 2013
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