Rivera v. Haywood

Rivera v Haywood (2020 NY Slip Op 07727) Rivera v Haywood 2020 NY Slip Op 07727 Decided on December 22, 2020 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: December 22, 2020 Before: Acosta, P.J., Oing, Scarpulla, Mendez, JJ. Index No. 21829/18E Appeal No. 12709 Case No. 2020-02066 [*1]Nancy Rivera, Plaintiff-Appellant, v Yolanda G. Haywood, Defendant-Respondent. Sacco & Fillas, LLP, Astoria (Boris Bernstein of counsel), for appellant. James G. Bilello & Associates, Hicksville (Susan J. Mitola of counsel), for respondent. Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered August 14, 2019, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Defendant established prima facie that the collision between her vehicle and plaintiff's vehicle was caused by plaintiff's failure to yield the right of way to defendant's vehicle at the stop sign at the intersection (see Vehicle and Traffic Law § 1142[a]; Namisnak v Martin, 244 AD2d 258, 260 [1st Dept 1997]). In opposition, plaintiff failed to raise an issue of fact either to rebut the presumption of negligence arising from her failure to yield the right of way to defendant's vehicle or to demonstrate that any negligence on defendant's part contributed to the accident (see Martinez v Cofer, 128 AD3d 421 [1st Dept 2015]; Murchison v Incognoli, 5 AD3d 271 [1st Dept 2004]). Plaintiff's speculation that defendant may have been at fault because she testified that she did not observe the actual impact between the two vehicles and did not know which direction plaintiff was coming from is insufficient to raise an issue of fact, given the unrefuted showing of her own negligence (see Estate of Bachman v Hong, 169 AD3d 436 [1st Dept 2019]; Flores v City of New York, 66 AD3d 599 [1st Dept 2009]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: December 22, 2020