By Rivera, J.P.; Roman, Hinds-Radix and Lasalle, JJ. Jhan Luis Fernandez, plf, v. American United Transportation, Inc. ap, Jonathan A. Duran res — (Index No. 703151/15) Russo & Toner, LLP, New York, NY (Maurice J. Recchia of counsel), for appellants. Gentile & Tambasco, Melville, NY (Yamile Al-Sullami and Ahmed Elzoghby of counsel), for respondents. In an action to recover damages for personal injuries, the defendants American United Transportation, Inc., and Enrique G. Simbana appeal from an order of the Supreme Court, Queens County (Leslie J. Purificacion, J.), entered October 6, 2017. The order, insofar as appealed from, granted the motion of the defendants Jonathan A. Duran and Yan Carlos Marine Abreu for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendants Jonathan A. Duran and Yan Carlos Marine Abreu which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the defendants American United Transportation, Inc., and Enrique G. Simbana are not aggrieved by that portion of the order (see CPLR 5511; Mixon v. TBV, Inc., 76 AD3d 144, 156-157); and it is further, ORDERED that the order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the defendants Jonathan A. Duran and Yan Carlos Marine Abreu. The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained on January 3, 2015, when a vehicle owned by the defendant Jonathan A. Duran and operated by the defendant Yan Carlos Marine Abreu, in which the plaintiff was a passenger, collided with a vehicle owned by the defendant American United Transportation, Inc. (hereinafter American), and operated by the defendant Enrique G. Simbana at the intersection of National Street and 42nd Avenue in Queens. National Street, on which Abreu was driving, was a two-way street not controlled by a traffic signal at its intersection with 42nd Avenue. On 42nd Avenue, a one-way, single-lane street on which Simbana was traveling, a stop sign governed the intersection with National Street. According to Simbana’s deposition testimony, as he proceeded to cross National Street after stopping at the stop sign, he “thought there was no traffic coming,” but his view of Abreu’s lane of travel was blocked by a “tall vehicle.” The front of the vehicle driven by Abreu collided with the front passenger side of the vehicle driven by Simbana. Duran and Abreu moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, contending that Simbana failed to yield the right-of-way to Abreu, and that Abreu’s actions were not a proximate cause of the accident. The Supreme Court, inter alia, granted the motion. American and Simbana appeal. “As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law §1142(a) and is negligent as a matter of law” (Hunt v. New York City Tr. Auth., 166 AD3d 735, 736; see Fuertes v. City of New York, 146 AD3d 936, 937; Zuleta v. Quijada, 94 AD3d 876, 877; Thompson v. Schmitt, 74 AD3d 789, 789; Rahaman v. Abodeledhman, 64 AD3d 552, 553). ”[A] driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield” (Hunt v. New York City Tr. Auth., 166 AD3d at 736; see Shashaty v. Gavitt, 158 AD3d 830, 831; Fuertes v. City of New York, 146 AD3d at 937). “[A] driver with a right-of-way… has a duty to use reasonable care to avoid a collision” (Yelder v. Walters, 64 AD3d 762, 764), and one “who lawfully enters an intersection may… be found partially at fault for an accident if that driver fails to use reasonable care to avoid a collision with another vehicle at an intersection” (Rahaman v. Abodeledhman, 64 AD3d at 553; see Graeber-Nagel v. Naranjan, 101 AD3d 1078, 1078). However, “a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” (Yelder v. Walters, 64 AD3d at 764; see Shashaty v. Gavitt, 158 AD3d at 831; Fuertes v. City of New York, 146 AD3d at 937). Here, Duran and Abreu made a prima facie showing of their entitlement to judgment as a matter of law dismissing all cross claims insofar as asserted against them by submitting evidence demonstrating that the vehicle driven by Abreu had the right-of-way proceeding on National Street at the intersection with 42nd Avenue, since National Street did not have a traffic control device and there was a stop sign on 42nd Avenue, and that Simbana, driving on 42nd Avenue, failed to yield (see Vehicle and Traffic Law §1142; Fuertes v. City of New York, 146 AD3d at 937; Zuleta v. Quijada, 94 AD3d at 877; Yelder v. Walters, 64 AD3d at 764). The question of whether Simbana stopped at the stop sign on 42nd Avenue is not dispositive, since the evidence established that, even if he did stop, he failed to yield to the vehicle driven by Abreu, which had the right-of-way (see Kraynova v. Lowy, 166 AD3d 600, 602; Fuertes v. City of New York, 146 AD3d at 937; Hatton v. Lara, 142 AD3d 1047, 1048). Simbana acknowledged that after stopping at the stop sign, he proceeded into the intersection without a clear view of traffic on National Street and without yielding the right-of-way to the vehicle driven by Abreu, thereby violating Vehicle and Traffic Law §1142(a) (see Pivetz v. Brusco, 145 AD3d 806, 807; Zhubrak v. Petro, 122 AD3d 922, 923; Smalls v. Adams, 118 AD3d 693, 694). Duran and Abreu also demonstrated that Abreu’s actions were not a proximate cause of the accident, and that he attempted to avoid the collision, but was unable to do so (see Shashaty v. Gavitt, 158 AD3d at 832; see also Smalls v. Adams, 118 AD3d at 695). In opposition, American and Simbana failed to raise a triable issue of fact. The allegation that Abreu may have been traveling at an excessive rate of speed is speculative in light of Simbana’s testimony that he did not see the vehicle driven by Abreu before the impact (see Pivetz v. Brusco, 145 AD3d at 808; Lilaj v. Ferentinos, 126 AD3d 947, 948; Puri v. Solomon, 123 AD3d 685, 686; Zuleta v. Quijada, 94 AD3d at 877). In addition, their contention that triable issues of fact exist as to whether Abreu took appropriate evasive action is without merit (see Pivetz v. Brusco, 145 AD3d at 808; Yelder v. Walters, 64 AD3d at 765). Accordingly, we agree with the Supreme Court’s determination to grant that branch of the motion of Duran and Abreu which was for summary judgment dismissing all cross claims insofar as asserted against them. RIVERA, J.P., ROMAN, HINDS-RADIX and LASALLE, JJ., concur.
By Rivera, J.P.; Duffy, Connolly and Iannacci, JJ. Anthony Randazzo, etc., plf-ap, v. Consolidated Edison Company of New York, Inc., defendant third-party plaintiff/second third-party plf-ap, VRD Construction Co., defendant third-party def-res, MPM Exclusive Enterprises, Inc. defendants second third-party defendants-respondents; Domenica Puleo, second third-party def-res — (Index No. 26377/10) In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant third-party plaintiff/second third-party plaintiff, Consolidated Edison Company of New York, Inc., separately appeals, from an order of the Supreme Court, Kings County (Arthur M. Schack, J.), dated April 27, 2015. The order, insofar as appealed from by the plaintiff, granted those branches of the separate motions of the defendant third-party defendant, VRD Construction Co., the defendant second third-party defendant MPM Exclusive Enterprises, Inc., and the defendant second third-party defendant Marcello Puleo which were for summary judgment dismissing the second amended complaint insofar as asserted against each of them. The order, insofar as appealed from by the defendant third-party plaintiff/second third-party plaintiff, Consolidated Edison Company of New York, Inc., (1) granted those branches of the separate motions of the defendant third-party defendant, VRD Construction Co., the defendant second third-party defendant MPM Exclusive Enterprises, Inc., and the defendant second third-party defendant Marcello Puleo which were for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against each of them, (2) granted that branch of the motion of the defendant third-party defendant, VRD Construction Co., which was for summary judgment dismissing the third-party complaint, and (3) granted those branches of the motion of the defendant second third-party defendant Marcello Puleo and the second third-party defendant, Domenica Puleo, and the separate motion of the defendant second third-party defendant MPM Exclusive Enterprises, Inc., which were for summary judgment dismissing the second third-party complaint insofar as asserted against each of them. ORDERED that the appeal by the defendant third-party plaintiff/second third-party plaintiff, Consolidated Edison Company of New York, Inc., from so much of the order as granted those branches of the separate motions of the defendant third-party defendant, VRD Construction Co., the defendant second third-party defendant MPM Exclusive Enterprises, Inc., and the defendant second third-party defendant Marcello Puleo which were for summary judgment dismissing the second amended complaint insofar as asserted against each of them is dismissed, as the defendant third-party plaintiff/second third-party plaintiff, Consolidated Edison Company of New York, Inc., is not aggrieved by that portion of the order (see CPLR 5511); and it is further, ORDERED that the order is reversed, on the law, those branches of the motion of the defendant third-party defendant, VRD Construction Co., which were for summary judgment dismissing the second amended complaint, all cross claims, and the third-party complaint insofar as asserted against it are denied, those branches of the separate motion of the defendant second third-party defendant MPM Exclusive Enterprises, Inc., which were for summary judgment dismissing the second amended complaint, all cross claims, and the second third-party complaint insofar as asserted against it are denied, those branches of the separate motion of the defendant second third-party defendant, Marcello Puleo, which were for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against him are denied, and those branches of the separate motion of the defendant second third-party defendant Marcello Puleo and the second third-party defendant, Domenica Puleo, which were for summary judgment dismissing the second third-party complaint insofar as asserted against them are denied; and it is further, ORDERED that one bill of costs is awarded to the plaintiff and the defendant third-party plaintiff/second third-party plaintiff, Consolidated Edison Company of New York, Inc., payable by the defendant second third-party defendant Marcello Puleo, the defendant third-party defendant, VRD Construction Co., the defendant second third-party defendant MPM Exclusive Enterprises, Inc., and the second third-party defendant, Domenica Puleo. On August 28, 2010, the plaintiff allegedly tripped and fell over the concrete surrounding a “sunken” metal grate covering a vault located in front of 36 Birch Lane on Staten Island. The plaintiff, by his mother, commenced this action to recover damages for personal injuries against Marcello Puleo (hereinafter the owner), one of the owners of 36 Birch Lane, and Consolidated Edison Company of New York, Inc. (hereinafter Con Edison), the owner of the metal grate. Also included as defendants were VRD Construction Co. (hereinafter VRD), the contractor hired by Con Edison to replace equipment located underneath the metal grate, and MPM Exclusive Enterprises, Inc. (hereinafter MPM), the contractor hired by the owner to install the sidewalk in front of his home, including the concrete surrounding the metal grate. After third-party actions were commenced and various motions were made, the Supreme Court awarded summary judgment dismissing all causes of actions and cross claims insofar as asserted against VRD, MPM, the owner, and Domenica Puleo, the co-owner (hereinafter the co-owner). The plaintiff appeals, and Con Edison separately appeals. In general, a contractual obligation, standing alone, will not give rise to tort liability in favor of a third party (see Espinal v. Melville Snow Contrs., 98 NY2d 136, 138). Nonetheless, the Court of Appeals has recognized three exceptions to this general rule: “(1) where the contracting party, in failing to exercise reasonable care in the performance of his [or her] duties, launches a force or instrument of harm… (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties… and (3) where the contracting party has entirely displaced the other’s party’s duty to maintain the premises safely” (id. at 140 [internal quotation marks omitted]; see Foster v. Herbert Slepoy Corp., 76 AD3d 210, 213). Here, the owner, MPM, and VRD failed to establish their prima facie entitlement to judgment as a matter of law by demonstrating that the work performed on the grate and vault did not create the allegedly dangerous condition that caused the plaintiff to trip and fall and, thus, launched a force or instrument of harm (see Giannas v. 100 3rd Ave. Corp., 166 AD3d 853, 856-857; Ragone v. Spring Scaffolding, Inc., 46 AD3d 652, 654). Therefore, those branches of their motions which were for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against each of them should have been denied. Moreover, the Supreme Court should not have awarded summary judgment dismissing Con Edison’s third-party complaint against VRD, which alleged, inter alia, contractual indemnification, and Con Edison’s second third-party complaint against the owner, the co-owner, and MPM, which alleged claims for contribution and common-law indemnification, as triable issues of fact exist regarding whether VRD and MPM negligently performed the work which allegedly caused the plaintiff’s fall (see Giannas v. 100 3rd Ave. Corp., 166 AD3d at 856-857; Chilinski v. LMJ Contr., Inc., 137 AD3d 1185, 1188). RIVERA, J.P., DUFFY, CONNOLLY and IANNACCI, JJ., concur.
