Nohs v. DiRaimondo, 2016 NY Slip Op. 05128 (2nd Dept., 6-29-2016), Failure to Stop at the Designated Stop Sign and Yield the Right of Way
In Nohs v. DiRaimondo, 2016 NY Slip Op. 05128 (2nd Dept., 6-29-2016), plaintiff was a passenger in the vehicle operated by defendant Nohs that was struck by a second vehicle owned and operated by defendant DiRaimondo. The car crash took place on February 13, 2011 at the intersection of Deauville Boulevard and Warwick Avenue in Copiague, New York.
The Nohs vehicle had been traveling northbound on Deauville Boulevard, and intended on making a left turn onto westbound Warwick Avenue. The DiRaimondo vehicle was traveling in the opposite direction, southbound on Deauville Boulevard and he intended on proceeding straight through the intersection. Deauville Boulevard runs north and south with one lane of travel in each direction, separated by a median. The intersection at Deauville Boulevard and Warwick Avenue is governed by four-way stop signs. Nohs testified she came to a complete stop at the stop sign for the lane in which she was traveling for five seconds, and that she then proceeded to make a left turn onto westbound Warwick Avenue.
Nohs testified that she first observed DiRaimondo's vehicle approximately six houses away, that she kept that vehicle in her observation the entire time, and that the DiRaimondo vehicle did not slow down or stop at the stop sign for his lane of travel. She further testified that she had almost completed her left turn when the passenger side door of her vehicle was struck by DiRaimondo's vehicle. Plaintiff, passenger in the Nohs' vehicle, confirmed Nohs' version of the accident; and further testified, the DiRaimondo vehicle was traveling at about forty (40) miles per hour, and never slowed down or stopped at the designated stop sign governing his direction of travel on Warwick Avenue.
DiRaimondo testified that when he approached the designated stop sign on southbound Deauville Avenue, he came to a complete stop at the stop sign for a couple of seconds, that he looked to his left and right and then "took off". He intended to proceed straight ahead and continue southbound on Deauville Avenue. He never saw the Nohs' vehicle at any time prior to the crash because he "was going and all of a sudden [the Nohs' vehicle] was there", and that as he "left the stop sign [his] foot was off the gas because [he] was coasting into the intersection" at three (3) miles per hour.
Defendant Nohs filed a motion seeking summary judgment on the issue of liability against defendant DiRaimondo. The trial court granted the motion in favor of defendant Nohs: "Here, the adduced evidence demonstrates that, regardless of whether he stopped at the stop sign in his direction, DiRaimondo violated Vehicle and Traffic Law §1142(a) by proceeding into the intersection without yielding the right of way to the Nohs' vehicle which had already entered the intersection. A driver who lawfully enters an intersection may still be found liable for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection…A driver intending to turn left within an intersection is required to yield the right of way to a vehicle proceeding straight or approaching from the opposite direction which is in the intersection or is so close as to constitute an immediate an immediate hazard (see, Vehicle and Traffic Law §1141)…However, the non-moving parties do not submit any evidence that the DiRaimondo vehicle was the first vehicle into the subject intersection. It is undisputed that the Nohs' vehicle had to travel out of the northbound lane of travel, across a wide grass median, and well into the southbound lane of travel on Deauville, almost completing its left turn, before being struck by the DiRaimondo vehicle."
Defendant DiRaimondo appealed to the Appellate Division, Second Department which affirmed the trial court's decision. In its opinion, the Second Department opined: "A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (see Mu-Jin Chen v Cardenia, 138 AD3d 1126; Smith v Omanes, 123 AD3d 691; Luke v McFadden, 119 AD3d 533). "Moreover, a driver is negligent where he has failed to see that which through proper use of his senses he should have seen" (Rodriguez v Klein, 116 AD3d 939, 939; see Laino v Lucchese, 35 AD3d 672). However, since there can be more than one proximate cause of an accident, the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law (see Ruggiero v Lentini, 123 AD3d 998, 999; Arias v Tiao, 123 AD3d 857, 858; Luke v McFadden, 119 AD3d at 534). Here, in support of their motion for summary judgment, the Nohses submitted the deposition testimony of the plaintiff, DiRaimondo, and Jordan Lynne Nohs. This evidence established, prima facie, that DiRaimondo's negligence in failing to yield the right-of-way and in failing to see what was there to be seen was the sole proximate cause of the accident (see Smith v Omanes, 123 AD3d at 691; Luke v McFadden, 119 AD3d at 533). Although DiRaimondo testified at his deposition that he came to a stop at the stop sign before proceeding into the intersection, the question whether he stopped at the stop sign is not dispositive, since the evidence established that he failed to yield even if he did stop (see Lilaj v Ferentinos, 126 AD3d 947, 948; Amalfitano v Rocco, 100 AD3d 939, 940; Czarnecki v Corso, 81 AD3d 774, 775). In opposition, DiRaimondo failed to raise a triable issue of fact."
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