Defendant's motion for summary judgment on the issue of liability dismissing the plaintiffs cause of action is denied as their issues of fact for trial. Defendant, Santana Ayala (hereinafter "Ayala") asserts that the plaintiff, Johara Goseine (hereinafter "Goseine') failed to yield the right of way as she proceeded through a stop sign entering the intersection of Atlantic Ave and 132nd St . where Ayala was proceeding with the right of way. Ayala further testified that he was in the left lane when the plaintiff's vehicle struck the Ayala vehicle. It is well settled an operator of a vehicle which has the right of way is entitled to assume that the operator of the opposing vehicle would obey the traffic laws requiring him to yield. Stiles v. County of Dutchess, 278 AD2d 304. Summary judgment is proper when the record contains undisputed evidence that the collision was proximately caused by the plaintiff's failure to stop her motor vehicle at a stop sign before entering the subject intersection, in violation of the Vehicle and Traffic Law §1172. Negrete v. Hernandez, 2 AD3d 511.

Plaintiff, in opposition asserts that a truck driver in the right lane expressly signaled that he was yielding the right of way to the plaintiff. Plaintiff further testified at her deposition that she was in the right lane when the "car from behind the truck on the other lane came right away and hit me."

It is clear that plaintiff's testimony is that she was in the right lane when the defendant's vehicle struck her and the defendant's testimony is that he was in the left lane when the plaintiff's vehicle struck him. The fact that the plaintiff allegedly "ran the stop sign" does not preclude a finding that the defendant, even with the right of way, did not exercise reasonable care to avoid the collision. Cox v. Nunez, 23 Ad3d 427.

Accordingly, defendant's motion for summary judgment dismissing the plaintiff complaint on the issue of liability is denied as there are issues of fact for trial including but [*2]not limited to whether the conduct of the defendant contributed to the cause of the subject motor vehicle accident. Morgan v. Laurent, 3 AD3d 556.

Date:_______________________________Denis J. Butler

Judge, Civil Court