The following papers numbered 1 to 16 were read on this motion by defendants/third-party plaintiffs, JAY GOOJA and LUXMI DEVI GOOJA, for an order pursuant to CPLR 3212(b), granting summary judgment dismissing the complaint and all cross-claims against them on ground that defendants JAY GOOJA and LUXMI DEVI GOOJA are not liable for the subject accident or the personal injuries alleged to have been sustained by the plaintiff, DELISA NIKA STAN:

Papers Numbered

Notice of Motion-Affidavits-Exhibits-Memo of Law.....1 - 6 [*2]

Affirmation in Opposition-Affidavits-Exhibits........7 - 12

Reply Affirmation...................................13 - 16

In this negligence action, plaintiff, Delisa Nika Stan, seeks to recover damages for personal injuries she sustained as a result of a motor vehicle accident that occurred at approximately 1:30 p.m. on November 24, 2009, between the vehicle operated by Steven Stan and the vehicle owned by Luxmi Devi Goojha and operated by defendant, Jay Goojha. The accident took place at the intersection of 217th Street and 47th Avenue, Queens County, New York. Plaintiff, Delisa Nika Stan, a passenger in the vehicle operated by her husband, Steven Stan, was allegedly injured when her husband's vehicle collided with the Goojha vehicle in the intersection. The intersection is controlled by a stop sign which was facing the direction of the Stan vehicle on 47th Avenue. Plaintiff, Delisa Stan, contends that her husband's vehicle stopped at the stop sign, then proceeded into the intersection and was struck in the intersection by the Goojha vehicle which was proceeding across the intersection on 217th Street.

The plaintiff commenced this action by filing a summons and complaint on September 21, 2011. Issue was joined by service of defendants' verified answer dated October 17, 2011. Defendants filed a third-party summons and complaint against the plaintiff's husband Steven Stan on November 3, 2011, seeking apportionment of liability on the ground that the accident was the result of negligence on the part of third-party defendant Stan for proceeding through a stop sign and failing to yield the right of way. Following the completion of discovery, the plaintiff filed a Note of Issue on March 29, 2013. The matter is now on the calendar of the Trial Scheduling Part for February 24, 2014.

In support of the motion, the defendants/third-party plaintiffs submit an affirmation from counsel, Tracy Morgan, Esq; a copy of the pleadings; photographs of the intersection in question; copies of the transcripts of the examination before trial of third-party defendant, Steven Stan, and defendant/third-party plaintiff, Jay Goojha; and a copy of the police accident report (MV-104).

In the accident description section of the police report, the officer, who did not witness the accident, describes the accident based upon statements of the two drivers as follows:

"At t/p/o driver Veh #1(Goojha), was driving N/B on 217th Street, when he saw Veh #2 (Stan) coming from his left and thought veh #2 (Stan) was going to stop but did not, in turn striking his vehicle causing damage to driver's side door. Driver [*3]Veh #2(Stan), states he was driving E/B on 47th Avenue when he made the stop at the stop sign and inched out, then proceeded to go but did not see Veh #1(Goojah), in turn striking vehicle causing damage to front of Veh #2."

In his examination before trial taken on February 4, 2013, Jay Goojha stated that on the date of the accident, November 24, 2009, he was operating a 2006 Nissan Maxima owned by his sister, Luxmi Devi Goojha, in a northbound direction on 217th Street. He stated that there is no traffic control device for vehicles traveling on 217th Street at the intersection with 47th Avenue, whereas, for vehicles traveling on 47th Avenue there is a full stop sign. He stated that as he approached the intersection, he was traveling at a rate of 20 miles per hour, he did not look to his left or to his right down 47th Avenue to determine if there was vehicular traffic and he did not see the Stan vehicle on 47th Avenue. However, when his vehicle was halfway through the intersection he felt an impact to the middle of the driver's side.

Goojha testified that he first observed the Stan vehicle a split second prior to the impact. The impact which was made by the front of the Stan vehicle, spun his vehicle around 180 degrees so that it was facing southbound when it came to rest. He stated that his vehicle was already in the intersection when the Stan vehicle went through the stop sign. When he saw the Stan vehicle in the intersection immediately before the impact he slammed on his brakes. After the impact he steered to the left to try to avoid contact with parked vehicles. Goojha testified that when the police arrived at the scene he told them that he was traveling down 217th Street and the other car hit him. He stated that he anticipated the other vehicle would have stopped at the stop sign on 47th Avenue. He stated that he is claiming that the Stan vehicle went through the stop side without yielding the right of way to his vehicle traveling on 217th Street. Although he did not actually see the Stan vehicle go through the stop sign, and only saw the vehicle just prior to impact, he stated that he believed the Stan vehicle went through the stop sign based upon the fact that the Stan vehicle was proceeding at a rate of speed of approximately 40 miles per hour or more.

In his examination before trial taken on February 4, 2013, Steven Stan, age 51, testified that on the date of the accident he was driving a 1995 Lexus sedan on 47th Avenue. He stated that there was stop sign in his direction on 47th Avenue and no traffic control devices for traffic proceeding on 217th Street. He was proceeding at a rate of speed of 15 - 20 miles per hour on 47th Street when he stopped at the stop sign at the intersection [*4]with 217th Street. He stated that after stopping he could not see up or down 217th Street because there were vehicles parked to his right on 217th Street that obstructed his view of vehicles proceeding on 217th Street. He stated that he looked to the right and his view was obstructed by a Jeep Cherokee parked on the corner of 217th Street. As a result, he moved his car up slowly at a rate of 5 miles per hour. He stopped again and as soon as he accelerated to move into the intersection he collided with the plaintiff's vehicle proceeding on 217th Street. He stated that he could not see fully up the block because his view was obstructed and therefore he did not see the vehicle prior to the impact. He stated that his best recollection of the accident is that he stopped at the stop sign, then proceeded to creep up and the other car came out of nowhere. He stated that the other vehicle was proceeding at least 40 miles per hour maybe 50 miles per hour. He also stated that the other vehicle was not traveling in its lane of traffic, rather it was occupying both the north and southbound lanes of 217th Street.

Pursuant to VTL § 1142(a): "every driver of a vehicle approaching a stop sign shall stop as required by section eleven hundred seventy-two and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection."

Defendant Goojha's counsel contends that the accident was caused solely by the negligence of the third-party defendant who had a stop sign facing his direction of traffic and failed to yield the right of way to the plaintiff in violation ofVTL § 1142(a). Counsel contends that the Goojha vehicle was proceeding lawfully and properly through the intersection on 217th Street and had the right of way as there was no traffic control device in Gooojha's direction. Counsel asserts that Goojha was entitled to assume that the driver of the vehicle controlled by the stop signal would yield (see McNamera v Fishkowitz, 18 AD3d 721 [2d Dept. 2005]). Counsel further contends that the evidence shows that Goojha was already in the middle of the intersection when the vehicle operated by Stan, with his wife in the passenger seat, came from his left side and struck his vehicle on the driver's side doors. Counsel also asserts that Stan was solely negligent for the accident as he entered the intersection despite admittedly having an obstructed view of 217th Street and not having observed the Goojha vehicle proceeding on 217th Street prior to the accident.

Counsel for defendant Goojha contends, therefore, that the [*5]defendants/third-party plaintiffs are entitled to summary judgment dismissing the plaintiff's complaint and all cross-claims against them because the plaintiff's husband breached his duty to stop at the stop sign, failed to yield the right of way and failed to see Goojha's vehicle which was already in the intersection, was solely responsible for causing the accident while the defendant Goojha driving with the right of way was free from culpable conduct.

In opposition to the motion, Brad S. Levin, Esq., counsel for plaintiff, Delisa Nika Stan, submits that summary judgment is not appropriate as the version of the accident submitted by defendant Goojha is inconsistent with the plaintiff's version of the accident and raises triable issues of fact for determination by the trier of fact. In support of the opposition, plaintiff also submits the deposition testimony of the plaintiff, Delisa Nika Stan, taken on February 4, 2013.

Ms. Stan, age 47, testified that prior to the accident she was self-employed as a house cleaner. She testified that at the time of the accident she was a passenger in the vehicle operated by her husband Steven Stan. She stated that on the street on which they were driving there was a stop sign facing in their direction. She stated that when her husband reached the stop sign he slowed down and stopped. She stated that he moved up, stopped again, and proceeded into the intersection colliding with the defendant's vehicle in the intersection. She said there was a van parked to their right. She never saw the other vehicle prior to the impact. She left the scene in an ambulance and was transported to the hospital.

In opposition to the motion, plaintiff's counsel, contends that there are triable issues of fact with respect to defendant's negligence in the happening of the accident. Counsel argues that Goojha's testimony does not establish defendant's freedom from culpable conduct. Counsel claims that even a driver with the right of way has a duty to use reasonable care to avoid a collision. Counsel claims that there is testimony from Stan that Goojha, although having the right of way, was occupying two lanes on 217th street and defendant's vehicle was more toward the left lane when it should have been more towards he right lane. Further, counsel submits that there are questions regarding defendant's comparable negligence as Goojha testified that he did not look to the left or right as he approached the intersection, that he did not observe the Stan vehicle until a split second before the accident, and Stan testified Goojha was proceeding at an excessive rate of speed. Counsel contends that there are questions as to Goojha's speed, which vehicle entered the [*6]intersection first and whether defendant used reasonable care when he approaced the intersection to avoid the accident.

Upon review of the defendant/third-party plaintiffs' motion, the plaintiff's opposition and the defendant's reply thereto this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

This Court finds that the deposition testimony of third-party defendant, Steven Stan and defendant, Jay Goojha established, prima facie, Goojha's entitlement to judgment as a matter of law by demonstrating that Steven Stan, who was faced with a stop sign at the intersection of 47th Avenue and 217th Street, was negligent as a matter of law having driven his vehicle into the intersection without yielding the right-of-way to the Goojha vehicle and that this was the sole proximate cause of the accident(see Vehicle and Traffic Law § 1142[a] Zuleta v Quijada, 94 AD3d 876 [2d Dept. 2012] Kotzias v Panagiotis, 91 AD3d 607 [2d Dept. 2012] Duran v Simon, 83 AD3d 654 [2d Dept. 2011). It is immaterial that the plaintiff may have stopped at the stop sign before proceeding into the intersection, because he did not have the right of way when he proceeded (see Amalfitano v Rocco, 100 AD3d 939 [2d Dept.2012] Martin v Ali, 78 AD3d 1135 [2010]).

Here, Stan testified that he proceeded into the intersection despite the fact that his view of 217th Street was partially obstructed by a Jeep parked near the corner on 217th Street. He stated that he looked to the right but could not fully see down 217th Street. He stated as he proceeded slowly into the intersection he did not see the defendant's vehicle come from the right which he said "came out of nowhere." Although he never saw the defendant's vehicle prior to impact, he approximated its speed as over 40 miles per hour based upon the force of the impact. In this regard, the courts have held that where the proof establishes that a vehicle enters an intersection without a clear view of traffic and fails to yield the right-of-way to cross-traffic after stopping at a stop sign, the evidence is sufficient to establish the driver is negligent based upon a violation of Vehicle and Traffic Law § 1142(a)(see Galvis v Ravilla, 974 [*7]NYS2d 288 [2d Dept. 2013] Timm v Barilli, 109 AD3d 655 [2d Dept. 2013] Figueroa v Diaz, 107 AD3d 754 [2d Dept. 2013] Hutton v Whelan, 104 AD3d 914 [2d Dept. 2013] Williams v Hayes, 103 AD3d 713 [2d Dept. 2013] Francavilla v Doyno, 96 AD3d 714 [2d Dept. 2012] Martin v Ali, 78 AD3d 1135 [2d Dept. 2010] Cartica v Kieltyka, 55 AD3d 523 [2d Dept. 2008]).

Further the evidence submitted in support of the motion established, prima facie, that Steven Stan's conduct was the sole proximate cause of the accident. The driver of the defendants' vehicle was entitled to anticipate that the third-party defendant, Stan, would obey the traffic law requiring him to yield (see Francavilla v Doyno, 96 AD3d 714 [2d Dept. 2012] Kotzias v Panagiotis, 91 AD3d at 607[2d Dept, 2012] Duran v Simon, 83 AD3d 654 [2d Dept. 2011] Martin v Ali, 78 AD3d 1135 [2d dept. 2010]).

Having made the requisite prima facie showing of entitlement to summary judgment as a matter of law, the burden shifted to the plaintiff and the third-party defendant to raise a triable issue of fact as to whether defendant Goojha was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]). Here, this Court finds that the plaintiff and third-party defendant failed to raise a triable issue of fact. Although Goojha stated that he looked straight ahead when he went throught the intersection, this action does not raise a question of fact as to whether he was comparatively negligent because the driver who has the right of way is entitled to anticipate that the driver facing the stop sign will obey the traffic law requiring him or her to yield (see Harris v Linares, 106 AD3d 873 [2d Dept. 2013] Briggs v Russo, 98 AD3d 547 [2d Dept. 2012] Barbato v Maloney, 94 AD3d 1028 [2d Dept. 2012] Rahaman v Abodeledhman, 64 AD3d 552 [2d Dept. 2009]). In addition, a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively at fault for failing to avoid the collision (see Figueroa v Diaz, 107 AD3d 754 [2d Dept. 2013] Barbato v Maloney, 94 AD3d 1028 [2d Dept. 2012]).

Lastly, the plaintiff's argument that Goojha was negligent in the operation of his vehicle and was traveling at an excessive rate of speed is speculative, as Stan testified that he never saw the defendants' vehicle prior to the impact, and as such, his assertions are insufficient to defeat the motion for summary judgment (see Galvis v Ravilla, 974 NYS2d 288 [2d Dept. 2013] Francavilla v Doyno, 96 AD3d 714 [2d Dept. 2012] Duran v Simon, [*8]83 AD3d 654 [2d Dept. 2011]).

Accordingly, for all of the above stated reasons, it is hereby,

ORDERED that the motion by defendants/third-party plaintiffs, JAY GOOJHA and LUXMI DEVI GOOJHA, for an order dismissing the complaint of plaintiff, DELISA NIKA STAN, and all cross-claims is granted, and it is further,

ORDERED, that the Clerk of Court is authorized to enter judgment accordingly.

Dated: January 6, 2014

Long Island City, NY

_________________

ROBERT J. MCDONALDJ.S.C.