Nevarez v. S.R.M. Management Corp.

OPINION OF THE COURT Renwick, J. Plaintiff Olga Nevarez commenced this action seeking to recover for personal injuries sustained following a two-car accident in the vicinity of Monroe Avenue, in the Bronx, on April 9, 2006. Plaintiff testified, during her examination before trial, that immediately prior to the accident she was driving her vehicle on Monroe Avenue, a one-way street, with her daughter as a front-seat passenger and a third person as a rear-seat passenger. She came to a full stop at the stop sign at the 175th Street intersection. While stopped, plaintiff looked to the right and to the left and observed no cars approaching the intersection from 175th Street. After making sure it was safe to continue, plaintiff proceeded to drive on Monroe Avenue across the intersection. As she crossed the double yellow line into the far side of 175th Street, she heard her daughter say that a car was approaching “mad fast.” As plaintiff looked to the right, the front of defendants’ car struck the passenger side of plaintiff’s car. Plaintiff described the impact as “very heavy” and estimated that the vehicle, driven by defendant J.R. Nina Rodriguez and owned by defendant S.R.M. Management Corp., had been traveling at approximately 40 miles per hour. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint. In support, defendants relied upon the aforementioned testimony of plaintiff and that of Rodriguez, who provided a different version of the accident. Rodriguez testified that he was traveling on 175th Street, which was not controlled by any traffic control device. Having the right-of-way, he entered the intersection, traveling at no more than 10 to 15 miles per hour. He looked straight ahead and did not observe any cars. Immediately upon entering the intersection, his vehicle struck the passenger side of plaintiffs vehicle toward the rear door. Defendants argued that plaintiff was negligent as a matter of law as the evidence established that plaintiff allegedly failed to yield the right-of-way in violation of Vehicle and Traffic Law § 1140. Supreme [297] Court denied the motion, and this appeal ensued. We now affirm. Defendants argue that Supreme Court erred in denying summary judgment dismissing the action because plaintiffs did not rebut the presumption of exclusive liability that must be imputed to plaintiff as the driver who approached an intersection controlled by a traffic device. With regard to automobile accidents, however, this Court has repeatedly held that “[fit cannot be said as a matter of law that [one] driver’s conduct was the sole proximate cause of the accident simply because his approach into the intersection was regulated by a stop sign whereas no traffic control devices regulated [the other driver’s] approach” (Wilson v Trolio, 30 AD3d 255, 256 [2006]; see also Pappalardi v Jones, 29 AD3d 391 [2006]; Hernandez v Bestway Beer & Soda Distrib., 301 AD2d 381 [2003]). This is particularly so in this case where the conflicting deposition testimony of plaintiff and Rodriguez raises several issues of fact that preclude the granting of summary judgment. One fallacy in defendants’ argument, accepted by the dissent herein, is that Rodriguez had the right-of-way. Of course, when a driver who approaches an intersection with a stop sign fails to yield the right-of-way to another driver who approaches the same intersection from another street without a traffic control device, he/she violates Vehicle and Traffic Law § 1140 and is thus guilty of negligence as a matter of law (see e.g. Perez v Brux Cab Corp., 251 AD2d 157, 159-160 [1998]). Here, however, plaintiff has raised an issue of fact as to whether Rodriguez had the right-of-way. Plaintiff testified not only that she stopped at the stop sign, but that she observed no cars at or near the other side of the intersection before she proceeded to drive into the intersection. While Rodriguez testified that he had the right-of-way at the time he entered the intersection, the dispute about which car arrived at and left the intersection first raises factual issues to be resolved by the trier of fact. The jury is free to reject Rodriguez’s allegations that plaintiff failed to properly yield to crossing traffic before proceeding into the intersection and attribute the cause of the accident to Rodriguez’s conduct of entering the intersection when he did not have the right-of-way. Even if defendants had presented irrefutable evidence that Rodriguez had the right-of-way, they would not have been entitled to summary judgment because the record demonstrates questions of fact as to Rodriguez’s comparative negligence. [298] “[UJnder 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’ ” (Romano v 202 Corp., 305 AD2d 576, 577 [2003], quoting Siegel v Sweeney, 266 AD2d 200, 202 [1999]; see also Wilson, 30 AD3d at 256). These conflicting versions of the accident also raise issues of fact as to whether Rodriguez failed to use reasonable care to avoid the collision. Indeed, it is undisputed that Rodriguez’s vehicle broadsided plaintiffs vehicle, which creates a reasonable probability that plaintiffs car had crossed the intersection first. If plaintiffs vehicle had already started to enter the intersection when Rodriguez approached it, Rodriguez had a duty to use reasonable care to avoid the collision. While Rodriguez testified that he approached the intersection at no more than 10 to 15 miles per hour, plaintiff has raised questions about the reliability of Rodriguez’s testimony as to his “slow” traveling speed, as suggested by plaintiffs description of the “very heavy” impact and the condition of her car after the collision. In addition, immediately prior to the collision, plaintiffs daughter observed Rodriguez’s car approaching “mad fast.” Under the circumstances of this case, it is for the jury to decide whether Rodriguez exercised such care as required. Furthermore, the cases relied upon by defendants do not mandate a different result. For instance, defendants’ reliance on Dinham v Wagner (48 AD3d 349 [2008]) is misplaced. In Dinham, the plaintiff was a passenger in a vehicle driven by the defendant Dinham when the vehicle collided at an intersection with a vehicle operated by the defendant Kim. Kim made a prima facie showing of entitlement to summary judgment by submitting the accident report in which Dinham admitted that she had run the red light, as well as an affidavit from Kim denying that she did anything wrong and claiming that she could not have avoided the vehicle that ran the red light. This Court found that Kim was entitled to summary judgment since the plaintiff failed to raise an issue of fact as to whether Kim was comparatively negligent. The plaintiff merely submitted an affirmation by her counsel who had no personal knowledge of the action. Here, unlike Dinham, plaintiff never signed a motor vehicle accident report admitting that she ran the stop sign; instead, she testified that she had in fact stopped at the stop sign and [299] looked both ways before proceeding into the intersection. Moreover, plaintiff testified that it was not until she had crossed the intersection that she noticed Rodriguez’s car traveling at approximately 40 miles per hour. Thus, unlike the plaintiff in Din-ham, plaintiff here clearly raised issues of fact as to whether she had the right-of-way when she entered the intersection and whether Rodriguez was solely at fault or comparatively negligent. Namisnak v Martin (244 AD2d 258 [1997]), also relied upon by defendants, is readily distinguishable. In Namisnak, the defendant Martin testified that he did not observe Namisnak’s car until it hit his truck’s “rear right side” (id. at 259). This Court found the fact that Namisnak’s car hit the rear side of Martin’s truck “suggests that the cab of the truck had passed beyond the intersection before the accident, making it unlikely that Martin would have been able to see the car coming off the exit ramp” (id.). Thus, this Court held that even if Martin was speeding, “this could not have caused the accident.” (Id. at 260.) Here, unlike Namisnak, the evidence suggests that plaintiff entered the intersection before Rodriguez since it is undisputed that defendants’ vehicle hit the passenger side of plaintiffs vehicle. Plaintiff also testified that she had in fact stopped at the stop sign and looked both ways before proceeding into the intersection. Thus, unlike Namisnak, the evidence clearly raised issues of fact as to whether plaintiff had the right-of-way as she entered the intersection and whether Rodriguez was solely at fault or comparatively negligent. Accordingly, the order of the Supreme Court, Bronx County (Alan Saks, J.), entered October 24, 2007, which denied defendants’ motion for summary judgment dismissing the complaint, should be affirmed, without costs.