Pursuant to CPLR 2219 [a], the Court considered the following papers in connection with the motion by Plaintiff Kenneth Williams pursuant to CPLR § 3212 seeking (1) summary judgment on the issue of liability against Defendants Victoria Mallano; (2) dismissal of Defendants' defense alleging comparative negligence and inquest on damages; and (3) such other relief as this Court deems just:

1. Notice of Motion dated March 12, 2025, Affirmation of Robert P. Sharron, Esq., in [*2]Support with Exhibits, and Memorandum of Law in Support (NY St Cts Filing [NYSCEF] Doc Nos. 13-15; 17-18);

2. Affirmation of Plaintiff Kenneth Williams (NY St Cts Filing [NYSCEF] Doc No. 16);

3. Affirmation in Opposition by Defendant's counsel Leigh Ann Panek, Esq., dated March 25, 2025, with Exhibits Affirmation in Opposition by Plaintiff's counsel Michael A. Simon, Esq., dated February 20, 2025, with Exhibits (NY St Cts Filing [NYSCEF] Doc Nos. 21; 23);

4. Affirmation of Defendant Victoria Mallano (NY St Cts Filing [NYSCEF] Doc No. 22);

5. Reply Affirmation of Robert P. Sharron, Esq., dated May 12, 2025 (NY St Cts Filing [NYSCEF] Doc No. 25).

This personal injury action arises from a motor vehicle collision that occurred at an intersection where Plaintiff, Kenneth Williams, was operating a motor vehicle proceeding lawfully along a through roadway, and Defendant Alexander Mallano, operating a vehicle owned by co-Defendant Victoria Mallano, entered said intersection from Sharpe Avenue, a roadway subject to a stop sign.

Plaintiff avers, and the motion record supports, that he approached the intersection while traveling at or below the posted speed limit, observed no vehicles approaching from the intersecting roadway, and proceeded without deviation through the intersection. Plaintiff contends that his vehicle was struck on the front driver's side panel by Defendants' vehicle, which had emerged abruptly from Sharpe Avenue in contravention of the governing stop sign. Plaintiff contends he had no opportunity to perceive or avoid the vehicle before impact.

As a direct result of the collision, Plaintiff sustained grave spinal injuries, including a large C2-C3 disc extrusion with resultant severe central canal stenosis, cord edema at the level of the extrusion, and disc protrusions at C3-C4 causing compression of the ventral cord and foraminal stenosis. These conditions necessitated a cervical epidural steroid injection on December 30, 2024, and continued medical management is anticipated.

In support of his motion, Plaintiff asserts that Defendants violated Vehicle and Traffic Law (VTL) §§ 1110 [a], 1142 [a], and 1172 [a], by failing to yield the right-of-way at a stop-controlled intersection, and that such failure constitutes negligence per se. Plaintiff maintains that his conduct was free from contributory fault.

In opposition, Defendants submit an affidavit by Defendant Alexander Mallano, who asserts that he came to a complete stop at the stop sign on Sharpe Avenue, looked both ways, and entered the intersection only when he believed it was safe to do so. He contends that Plaintiff's vehicle "must have been traveling at an excessive rate of speed," and that Plaintiff's speed rendered it impossible to perceive or avoid the vehicle in time. Defendants offer no expert [*3]affidavit, accident reconstruction analysis, or corroborative third-party testimony.

Defendants do not dispute the existence of the stop sign, nor do they provide any material contradiction of the fact that Plaintiff had the right-of-way.

Conclusions of Law

It is well settled that summary judgment must be granted where the movant demonstrates, through competent and admissible evidence, the absence of any triable issue of material fact and establishes entitlement to judgment as a matter of law (see Winegrad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v New York, 49 NY2d 557 [1980]).

A motorist traveling on a through street with the benefit of the right-of-way is statutorily and jurisprudentially entitled to assume that cross traffic will yield in accordance with applicable traffic controls (see Attl v Spetler, 137 AD3d 1176 [2d Dept 2016]; Moroe v Dulashko, 81 AD3d 907 [2d Dept 2011]). A driver emerging from a stop sign must yield to all traffic so close as to constitute an immediate hazard (VTL § 1142 [a]).

Here, Plaintiff's motion is accompanied by sworn affirmations attesting to his lawful speed, the lack of observable cross traffic, and the location and nature of the impact. The physical location of the damage—to the front driver's side—lends objective corroboration to Plaintiff's account that he had already entered and nearly cleared the intersection when the collision occurred. This constitutes a compelling prima facie showing of negligence on the part of the Defendants and freedom from contributory fault on the part of Plaintiff.

The gravamen of Defendants' opposition lies in the affidavit of Defendant Victoria Mallano. While this affidavit is offered on personal knowledge, it consists principally of the following contentions: that she began to slow her vehicle when she was already in the cross walk; she saw the other vehicle enter the intersection; she tried to swerve but was unable to avoid the other vehicle. Defendant Victoria Mallano contends that she did not know there was a stop sign at the intersection because of a box truck blocking her view.

Defendant Victoria Mallano implies in her affirmation that the Plaintiff may have been traveling at a higher rate of speed by stating that "For a split second I saw the other vehicle entering the intersection." (NY St Cts Filing [NYSCEF] Doc No. 22). This implication is fundamentally conclusory and speculative. No estimate of Plaintiff's speed is provided. No basis is articulated for the assertion that the speed was excessive, nor is any expert opinion or objective physical evidence adduced to support it. There are no skid marks, no eyewitnesses, and no measurable estimates of time or distance.

The courts of this state have repeatedly held that "[a] conclusory allegation of excessive speed, without specific evidence, is insufficient to defeat summary judgment where the plaintiff had the right-of-way" (see Sapienza v Harrison, 191 AD3d 1028 [2d Dept 2021]; Higgins v [*4]Stelmach, 208 AD3d 1165 [2d Dept 2022]). Further, the operator with the right-of-way "has no duty to watch for and avoid a driver who might fail to stop at a stop sign" (see Perez v. Brux Cab Corp., 251 AD2d 157 [1st Dept 1998]).

Even assuming arguendo that Plaintiff was exceeding the speed limit—a proposition unsupported by any evidence—that fact alone would not constitute proximate cause of the accident unless it negated his right-of-way or contributed materially to the occurrence. Defendant's affidavit fails to bridge this analytical gap.

Thus, Defendants have not met their burden of raising a triable issue of material fact. The affidavit, devoid of specificity, objective support, or third-party corroboration, is insufficient as a matter of law.

Given Plaintiff's uncontroverted evidence of lawful conduct and the lack of admissible proof that he engaged in negligent operation of his vehicle, Defendants' affirmative defense of comparative negligence must be dismissed. There is no competent evidence that Plaintiff contributed in any degree to the causation of the accident. Speculation regarding excessive speed, unsupported by quantifiable data or physical evidence, cannot survive scrutiny under CPLR §3212.

Upon the foregoing, the Court finds that Plaintiff has established entitlement to summary judgment on the issue of liability as a matter of law, and that Defendants have failed to rebut this showing with admissible evidence raising a triable issue of material fact. The affidavit submitted in opposition is insufficient to forestall summary adjudication, as it consists of speculative and conclusory statements unsupported by evidentiary substantiation.

Accordingly, it is hereby:

ORDERED, that Plaintiff's motion for summary judgment on the issue of liability is GRANTED in its entirety; and it is further

ORDERED, that the affirmative defense of comparative negligence interposed by Defendants is hereby DISMISSED; and it is further

ORDERED, that the matter shall proceed to trial solely on the issue of damages

This shall constitute the Decision and Order of the court. The clerk shall enter judgment accordingly.