James Nieves,
Plaintiff,
against
Bibi Hanif and AZAD HANIF,
Defendants,
|
1256/2014
Robert J. McDonald, J.
In this negligence action, plaintiff, James Nieves, seeks to recover damages for
personal injuries he sustained as a result of a motor vehicle accident that occurred on
October 6, 2013, between the vehicle operated by plaintiff and the vehicle owned by
defendant, Bibi Hanif, and operated by defendant, Azad Hanif. The accident took place
at the intersection of 242nd Street and 89th Avenue, Queens County, New York. The
intersection is [*2]controlled by a stop sign which was
facing the direction of the Hanif vehicle on 89th Avenue. Nieves, who had no traffic
control device in his direction, contends that he was proceeding with the right-of-way on
242nd Street when the vehicles collided in the intersection. Plaintiff asserts that Mr.
Hanif was negligent in entering the intersection without yielding the right of way and
that Mr. Hanif's negligence was the sole proximate cause of the accident.
The plaintiff commenced this action by filing a summons and complaint on
January 27, 2014. Issue was joined by service of defendants' verified answer dated March
12, 2014. A Note of Issue was filed on December 15, 2014. In support of the motion for
summary judgment, plaintiff submits an affirmation from counsel, Christina Mark, Esq; a
copy of the pleadings; a copy of the police accident report; photographs depicting the
damage to the vehicles; and copies of the transcripts of the depositions of plaintiff, James
Nieves, and defendant Azad Hanif.
James Nieves, age 34, was deposed on June 25, 2014. He stated that the
accident took place around the corner from his house at the intersection of 242nd Street
and 89th Avenue at approximately 7:25 a.m. He was traveling from his house to his job
and was proceeding on 242nd Street. There was no traffic device in his direction but
there was a stop sign facing drivers on 89th Avenue. As he was proceeding through the
intersection he saw the defendants' vehicle on 89th Avenue proceeding westbound from
his left about one second before the impact. He steered right to try to avoid the accident.
He states that the defendants, vehicle was just going through the intersection as he was
entering it. He states that as he proceeded across the intersection he saw the front of the
defendant's vehicle coming right through the intersection. He stated that as he
approached the intersection, he looked in both directions on 89th before entering the
intersection but he did not see any vehicles. He stated that the front side of the
defendants' vehicle stuck his vehicle on driver's side in the area of the front tire. When
the police arrived at the scene the defendant told the officer that he was sorry and that he
didn't see the plaintiff's vehicle.
Azad Hanif, age 58, was deposed on August 6, 2014. He stated that he was
involved in a motor vehicle accident on Sunday, October 6, 2013 at 7:30 a.m. He was
proceeding on 89th Avenue on his way home. He stated that there was a stop sign at the
intersection with 242nd Street. He stated that he made a full stop right before the stop
sign and waited for 5 - 10 seconds. He states that he could not see any oncoming traffic
so he gently moved forward a little bit. He kept looking to his left and [*3]right. He states that he still could not see any oncoming
traffic due to parked vehicles on all corners of the road. He states that when he moved up
a third time, his vehicle collided with the plaintiff's vehicle. He stated that although he
could not see the traffic on 89th when he moved up the third time, his vehicle was rolling
partially into the intersection and was struck. He did not see the plaintiff's vehicle until
after the collision. He told the police officer at the scene that he stopped and then moved
forward and before he could see the plaintiff's vehicle the collision occurred. He told the
officer that because of the parked vehicles on the corner he could not see if any vehicle
were approaching.
The police officer who responded to the scene filed a police accident report
which describer the accident as follows;
"At t/p/o Oper. No.1 (plaintiff) states he was traveling southbound on 242nd
Street and states that Veh #2 had a stop sign and hit his vehicle. Oper #2 (defendant),
states he was traveling eastbound on 89th Avenue and came to a complete stop and didn't
see Veh #1 coming."
The plaintiff now seeks summary judgment contending that the evidence
establishes that Mr. Hanif's actions violated VTL § 1142(a), that Mr. Hanif's actions
were negligent as a matter of law and were the sole proximate cause of the accident.
Plaintiff's counsel contends that the accident was caused solely by the negligence of Mr.
Hanif who had a stop sign facing his direction of traffic and failed to yield the right of
way to the plaintiff in violation of VTL § 1142. Plaintiff submits that defendant was
negligent in entering the intersection when it was not safe to do so, failed to see the
vehicle operated by the plaintiff and failed to yield to the plaintiff's vehicle which was
proceeding with the right-of-way on 242nd Street. Counsel asserts that Mr. Hanif entered
the intersection without being able to see to his right to ascertain whether there was a
vehicle approaching. It is claimed that by entering the intersection, past the stop sign,
without knowing whether any vehicles were coming from his right, he caused the subject
accident (see Williams v
Hayes, 103 AD3d 713 [2d Dept. 2013]; Figueroa v Diaz, 107 AD3d 754 [2d Dept. 2013]; Francavilla v Doyno, 96 AD3d
714 [2d Dept. 2012]; Barbato v Maloney, 94 AD3d 1028 [2d Dept. 2012]; Zuleta v Quijada, 94 AD3d
876 [2d Dept. 2011]; O'Connell v DL Peterson Trust/Abbott Labs, 67 AD3d
87[2d Dept. 2009]. Thus, the plaintiff contends that Mr. Hanif, who conceded that
he never saw the plaintiff's vehicle before he entered the intersection, was negligent and
that his negligence was the sole proximate cause of the accident. Plaintiff contends that
he was proceeding [*4]lawfully with the right of way,
and only saw the defendants' vehicle a second before the impact and tried to avoid the
impact, and as such, was free from culpable conduct (see Grossman v Spector, 48 AD3d
750 [2d Dept. 2008]; Odumbo v Perera, 27 AD3d 709 [2d Dept. 2006]; Bongiovi v Hoffman, 18 AD3d
686 [2d Dept. 2005]).
In opposition, Jeffrey E. Bollinger, Esq., counsel for defendant, submits that
summary judgment is not appropriate as there are triable issues of fact with respect to the
plaintiff's negligence in the happening of the accident. Firstly, counsel asserts that the
defendant did, in fact, stop at the stop sign and did attempt to yield the right of way as he
was inching up slowly into the intersection. Counsel also asserts that there can be more
than one proximate cause of an accident (see Incle v Byrne-Lowell, 115 AD3d 709 [2d Dept. 2014]; Cox v Nunez, 23 AD3d
427 [2d Dept. 2005]). Plaintiff argues that there is evidence of comparative
negligence on the part of Mr. Nieves in that Mr. Nieves failed to see the Hanif vehicle in
the intersection, failed to yield, and failed to use reasonable care to avoid the collision.
Thus, defendant asserts that Mr. Nieves has not established his freedom from
comparative negligence.
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 plaintiff's motion for partial summary judgment on the
issue of liability, the defendants' affirmation in opposition, and the plaintiff's reply
thereto, this Court finds as follows:
The plaintiff presented evidence that the defendant, who was faced with a
stop sign at the intersection of 242nd Street and [*5]89th
Avenue, was negligent in entering the intersection without having a clear view of the
traffic on the through street and without yielding the right-of-way to plaintiff's vehicle
(see Vehicle and Traffic Law § 1142[a]; Luke v McFadden, 119 AD3d 533 [2d Dept. 2014][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 1172(a), and is negligent
as a matter of law]; 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]; 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 defendant 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 without seeing approaching traffic (see Williams v Hayes, 103 AD3d
713 [2d Dept. 2013]; Amalfitano v Rocco, 100 AD3d 939 [2d Dept.2012]; Czarnecki v Corso, 81 AD3d
774 [2d Dept. 2011]; Martin v Ali, 78 AD3d 1135 [2d Dept. 2010]).
Here, Mr. Hanif testified that he proceeded into the intersection despite the
fact that his view of 242nd Street was obstructed by vehicles parked near the corner. He
told the police officer at the scene that he stopped his vehicle and proceeded slowly into
the intersection but rolled his vehicle into the intersection without seeing the plaintiff's
vehicle approaching. 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][the sole proximate cause of the
accident was the injured plaintiff's failure to properly observe and yield to cross traffic
before proceeding into the intersection]; 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 establishes, prima
facie, that plaintiff was free of comparative negligence and that defendant's conduct in
driving into the path of plaintiff's vehicle was the sole proximate cause of the [*6]accident. The plaintiff as entitled to anticipate that Mr.
Hanif would obey the traffic law requiring him to yield (see Luke v McFadden, 119 AD3d
533 [2d Dept. 2014]; Bennett v Granata, 987 NYS2d 424 [2d Dept. 2014];
Williams v Hayes, 103
AD3d 713 [2d Dept. 2013]; 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 defendant to raise a triable issue of
fact as to whether the plaintiff 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 defendant
failed to raise a triable issue of fact as to whether plaintiff 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]; Williams v Hayes, 103 AD3d 713 [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 Breen v Seibert, 123 AD3d 963 [2d Dept. 2014]; Bennett v Granata, 118 AD3d
652 [2d Dept. 2014]; Figueroa v Diaz, 107 AD3d 754 [2d Dept. 2013]; Barbato v Maloney, 94 AD3d
1028 [2d Dept. 2012]).
Accordingly, for all of the above stated reasons, it is hereby,
ORDERED, that the plaintiff's motion is granted, and the plaintiff, JAMES
NIEVES, shall have partial summary judgment on the issue of liability against the
defendants, BIBI HANIF andAZID HANIF, and the Clerk of Court is authorized to enter
judgment accordingly, and it is further,
ORDERED, that upon completion of discovery on the issue of damages, and
compliance with all the rules of the Court, this action shall be placed on the trial calendar
of the Court for a trial on serious injury and damages.
Dated: March 3, 2015
Long Island City, NY
_________________
ROBERT J. MCDONALDJ.S.C.