The following papers numbered 1 to 14 were read on this motion by defendant in Action No. 1, MUHAMAD A. RAHMAN, for an order pursuant to CPLR 3212(b) granting defendant summary judgment on the issue of liability against Plaintiff in Action NO. 1, JAVID KAHN:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.................1 - 6

Affirmation in Opposition-Memo of Law................7 - 12

Reply Affirmation...................................13 - 14

In this negligence action, plaintiff in Action No. 1, Javid Khan, seeks to recover damages for personal injuries he sustained as a result of a motor vehicle accident that occurred at approximately 7:30 p.m. on June 16, 2009, between the vehicle operated by plaintiff and the vehicle owned and operated by defendant in Action No. 1, Muhamad A. Rahman. The accident took place at the intersection of 45th Street and 21st Avenue, Queens County, New York. Plaintiff was allegedly injured when his vehicle collided with the defendant's vehicle in the intersection. The intersection is controlled by a stop sign which was facing the direction of the plaintiff's vehicle on 45th Street. Plaintiff contends that he stopped at the stop sign, then proceeded partially into the intersection and stopped again (due to an obstructed view of 21st Avenue), and was struck by the defendant's vehicle which was proceeding with the right of way on 21st Avenue. Plaintiff contends that as a result of the accident he sustained serious physical injuries.

The plaintiff commenced this action by filing a summons and complaint on June 7, 2012. Issue was joined by service of defendant's verified answer dated July 17, 2012. By decision and [*2]order dated February 28, 2013, this matter was consolidated for joint trial with Action No. 2 under Index No. 10454/2012 and Action No. 3 under Index No. 15361/2011 as set forth above. Following the completion of discovery, the plaintiff in Action No. 1 filed a Note of Issue on July 26, 2013. The Court records indicate that on January 28, 2014, Action No. 3 was settled before trial. Action Nos. 1 and 2 are on the calendar of the Trial Scheduling Part for September 15, 2014.

In support of the motion for summary judgment, the defendant submits an affirmation from counsel, Scott R. Dinstell, Esq; a copy of the pleadings; copies of the transcripts of the examinations before trial of the plaintiff and the defendant; and a photograph of the intersection taken from the Google website.

In his examination before trial, taken on June 14, 2013, plaintiff, Javid Khan, a self employed taxi driver, age 61, stated that on the date of the accident, June 16, 2009, he was coming from his home and proceeding on 45th Street. His wife was seated in the front passenger seat. When he approached the intersection with 21st Avenue he was faced with a stop sign in his direction. He stated that he made a full stop behind the stop line prior to entering the intersection. He stated that he could not fully see into the intersection because a blue van parked to his left on the corner of 21st Street had obstructed his view. He slowly moved up seven or eight feet past the cross-walk and drove partially into the intersection to get a better view of traffic on 21st Avenue. He then came to a full stop again and looked to his left and to his right. When he looked to his right he saw a car on 21st Avenue coming towards the intersection at a high rate of speed. Approximately one second later he was still stopped in the intersection when his vehicle was struck by the defendant's vehicle. The plaintiff was transported from the scene in an ambulance and taken to the emergency room at Elmhurst Hospital where he was treated and released in the morning.

Defendant, Muhamad A. Rahman, a station supervisor with the New York City Transit Authority, age 50, testified on June 14, 2013. On the day of the accident he was operating a 1995 Nissan Altima with his wife, his son and daughter in the vehicle. He was coming from his home and proceeding westbound on 21st Avenue going to pick up another child at school. He stated that there is no stop sign or traffic light at the intersection of 45th Street for cars proceeding on 21st Avenue. He states he was traveling at a rate of 25 miles per hour. He stated that as he was proceeding through the intersection at 45th Street his vehicle was struck on the right side, passenger rear door, by the front of the vehicle being operated by the plaintiff. He first saw the plaintiff's [*3]vehicle when he, defendant, was 30 feet from the intersection. When he first saw the plaintiff's vehicle it was moving on 45th Street and was 25 feet behind the stop sign. He proceeded into the intersection looking straight ahead and was struck by the plaintiff's vehicle causing his vehicle to spin out. When the police came to the scene he told them that he was driving through the intersection on 21st Avenue and the plaintiff did not stop at the stop sign and struck his vehicle. He left the scene of the accident in an ambulance and was taken to Elmhurst Hospital where he was treated and released.

Defendant seeks summary judgment on the ground that the evidence establishes that the plaintiff violated VTL § 1142(a), was negligent as a matter of law and was the sole proximate cause of the accident. Defendant's counsel contends that the accident was caused solely by the negligence of the plaintiff who had a stop sign facing his direction of traffic and failed to yield the right of way to the defendant in violation of VTL § 1142. Counsel submits that although the plaintiff states that he stopped at the stop sign he then proceeded into the intersection without having a clear view, failed to see the vehicle operated by Rahman until he was already through the stop sign and failed to yield the right of way to the defendant's vehicle which was proceeding with the right of way on 21st Avenue. Counsel contends that the defendant was proceeding within the speed limit and that his vehicle was already in the intersection when the plaintiff came out into the intersection and struck his vehicle leaving the defendant no opportunity to try to avoid the accident. Counsel asserts that Rahman was entitled to assume that the driver of the vehicle controlled by the stop signal would yield. Thus, counsel contends that the plaintiff was solely responsible for causing the accident while the defendant, driving with the right of way, was free from culpable conduct (citing Hutton v Whelan, 104 AD3d 914 [2d Dept. 2013] Amalfitano v Rocco, 100 AD3d 939 [2d Dept. 2012] Rankel v Saccardo, 100 AD3d 613 [2d Dept. 2012].

In opposition, Salvatore A. Asaro, Esq., counsel for plaintiff, Javid Kahn, submits that summary judgment is not appropriate as there are triable issues of fact with respect to defendant's negligence in the happening of the accident. Counsel asserts that the version of the accident submitted by the defendant is inconsistent with the plaintiff's version of the accident and as such there are triable issues of fact requiring a determination by a jury. Plaintiff asserts that the courts have held that notwithstanding the presence of a stop sign at an intersection the driver traveling on the uncontrolled through highway may not have the right of way with respect to a vehicle that has already entered the intersection (citing Nevarez v [*4]S.R.M. Management Company, 58 AD3d 295 [1st Dept. 2008] Rivera v Berrios Trans Service Inc., 64 AD3d 416 [1s Dept. 2009]. Counsel asserts that even if the defendant did have the right of way there are questions of his comparative negligence in view of the fact that the plaintiff stated that he had already proceeded into the intersection before the defendant's vehicle, which was allegedly proceeding at a fast rate of speed, in violation of VTL § 1180, struck his vehicle. Counsel asserts in addition, that the defendant stated that he observed the plaintiff's vehicle behind the stop sign 10 - 15 seconds before the accident but failed to keep the plaintiff's vehicle under observation, thus failing to see what should have been seen. Counsel claims that the plaintiff stopped appropriately at the stop sign and proceeded slowly into the intersection, but due to the defendant's failure to keep a proper lookout and reduce his speed there is a question of whether the defendant was negligent and whether defendants's actions were a proximate cause of the accident.

Thus, plaintiff argues that the motion for summary judgment must be denied as there are contrary versions of how the accident occurred and questions of fact as to defendant's speed, which vehicle entered the intersection first and whether defendant used reasonable care when he approached the intersection to avoid the accident.

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]).

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."

Upon review of the defendant's motion, the affirmation in opposition, and the reply thereto, the motion by defendant Rahman for summary judgment on the issue of liability dismissing the plaintiff's complaint in Action No. 1 is denied. [*5]

This Court finds, that the defendant presented evidence that the plaintiff, who was faced with a stop sign at the intersection of 21st Avenue and 45th Street, was negligent having driven his vehicle into the intersection without having a clear view of the traffic on the through street and without yielding the right-of-way to the defendant's vehicle (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 stopped at the stop sign before proceeding into the intersection, because he did not have the right of way when he proceeded into the intersection (see Amalfitano v Rocco, 100 AD3d 939 [2d Dept.2012] Martin v Ali, 78 AD3d 1135 [2010]).

Here, plaintiff testified that he proceeded into the intersection and stopped again because his view of 21st Street was partially obstructed. 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, 111 AD3d 600 [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]).

However, the testimony of the plaintiff is sufficient to raise triable issues of fact as to whether the defendant was also negligent. The plaintiff testified that he was already in the intersection when the defendant who was traveling at an unreasonable rate of speed struck his vehicle in the intersection. However, defendant stated he observed the plaintiff's vehicle behind the stop sign, continued looking straight ahead and proceeded into the intersection when his vehicle was struck by the plaintiff's vehicle. In this regard the courts have held that a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection (see Sirot v Troiano, 66 AD3d 763 [2d Dept. 2009] Thus, "under the doctrine of comparative negligence, a driver who lawfully enters an intersection . . . may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection" (see Regans v Baratta, 106 AD3d 893 [2d Dept. 2013] Romano v 202 Corp., 305 [*6]AD2d 576 [2d Dept. 2003][that the plaintiff allegedly "ran" the stop sign would not preclude a finding, as a matter of law, that negligent conduct by defendant contributed to the accident]).

Thus, as the parties testified to conflicting versions of the cause of the accident they raised triable issues of fact as to whether the plaintiff stopped at the stop sign before proceeding into the intersection; which vehicle entered the intersection first; whether the defendant was also negligent, whether his negligence was a proximate cause of the accident, and whether defendant failed to see the plaintiff's vehicle in the intersection through the proper use of his senses and contributed to the happening of the accident (see Fogel v Rizzo, 91 AD3d 706 [2d Dept. 2012] Todd v Godek, 71 AD3d 872 [2d Dept. 2010]). "A driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection" (Gause v Martinez, 91 AD3d 595 [2d Dept. 2012]). The courts have held in this regard that there can be more than one proximate cause of an accident. The issue of comparative negligence is generally a question for the jury to decide (see Zuckerman v City of New York, 49 NY2d 557 [1980] Myles v Blain, 81 AD3d 798 [2d Dept. 2011] Goldenberg v Palewicz, 65 AD3d 518 [2d Dept. 2008] Sokolovsky v Mucip, Inc., 32 AD3d 1011 [2d Dept. 2006] Cox v Nunez, 23 AD3d 427 [2d Dept. 2005]).

Accordingly for all of the above stated reasons the motion by defendant Muhamad A. Rahman for summary judgment dismissing the plaintiff's complaint in Action No 1 is denied.

Dated: May 7, 2014

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.