Present: HON. THOMAS P. PHELAN. Justice. CARMEN ANCONA and RICHARD ANCONA SHORT FORM ORDER TRIAL/IAS PART 3 NASSAU COUNTY

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1 SHORT FORM ORDER Present: SUPREME COURT HON. THOMAS P. PHELAN. Justice. CYNTHIA COAD and CHRISTOPHER COAD, her husband STATE OF NEW YORK TRIAL/IAS PART 3 NASSAU COUNTY ORIGINAL RETURN DATE: 02/24/10 SUBMISSION DATE: 04/28/10 Plaintiffs INDEX NO /08 CHARLES CRENNEL, MTA-LONG ISLAND BUS, METROPOLITAN SUBURBAN BUS AUTHORITY and CARMEN ANCONA MOTION SEQUENCE ##2 and 4 CARMEN ANCONA and RICHARD ANCONA Plaintiffs -against- METROPOLITAN TRANSPORT A TION AUTHORITY METROPOLITAN SUBURBAN BUS AUTHORITY, MT A-LONG ISLAND BUS AND CHARLES M. CRENNEL SUZANNE GITTER Plaintiff METROPOLITAN COMMUTER TRANSPORTATION AUTHORITY, METROPOLITAN SUBURBAN BUS AUTHORITY, CHARLES CRENNEL and CARMEN ANCONA,

2 .. RE: COAD v. CRENNEL, et al. ( GITTER v. METROPOLITAN, et al. ( Page 2 The following papers read on these motions: Notice of Motion Notice of Cross Motion Affirmation in Opposition.. Reply Affirmations "'" Defendants MTA Long Island-Bus, Metropolita Suburban Bus Authority, Metropolita Transportation Authority, Metropolitan Commuter Transportation Authority and Charles Crennel (the " Bus and Crennel defendants ) move, pursuant to CPLR 3212, seeking an order granting summary judgment on the grounds that the moving defendants were not negligent as a matter of law and did not cause or contribute to the accident. Plaintiff, Suzanne Gitter (" Gitter ), cross moves for summary judgment against defendants in It is well settled that on a motion for summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the lack of any material issues of fact (Ayotte v Gervasio, 81 NY2d 1062 (1993); Alvarez v Prospect Hosp. 68 NY2d 320 (1986)). If such a showing is made, the burden shifts to the pary opposing the sumar judgment motion to produce evidentiarproofin admissible form sufficient to establish the existence of material issues of fact which require resolution at trial (Alvarez 68 NY2d at 324). All thee actions were brought to recover damages for personal injuries allegedly sustained by the various plaintiffs as a result of an accident which occurred on or about August 15, Gitter was a passenger in the vehicle (a Mercedes Benz) owned and operated by defendant, Carmen Ancona ("Ancona ). Plaintiff, Cynthia Coad, was a passenger in the Bus and Crennel defendants s vehicle. The Ancona vehicle was traveling westbound on Elm Street when it collded with the Bus and Crennel defendants' vehicle, which was traveling southbound on Woodfield Road. Elm Street was controlled by a stop sign. It is undisputed that Ancona s vehicle was faced with a stop sign, while there was no traffic control device for the Bus and Crennel defendants vehicle. The Bus and Crennel defendants submit that defendant Ancona was negligent as a mater of law in failng to yield for a stop sign in violation of VTL 1141(a) and 1172(a). Copies of the transcripts of the depositions of Cynthia Coad, Kenneth Brewer (non-party witness), Carmen Ancona and Charles Crennel have been submitted in support of the Bus and Crennel defendants motion. Gitter submits a copy of the transcript of her deposition in support of her motion. The witness, Kenneth Brewer, testified that: "There was a Mercedes Bens, she didn t even yield. It was like the stop sign didn t even exist" (Ex. L, p. 24). "All I saw was the lady zooming out without even looking. It was as ifthe stop sign wasn t even there as far as she was concerned, and

3 COAD v. CRENNL, et al. ( GITTER v. METROPOLITAN, et al. ( Page 3 and the bus was coming down Woodfield Road, and that's where the collsion occurred" (Id. 27). Mr. Brewer also testified that the bus was traveling between thirty and forty miles per hour (Id., p. 19). Defendant Ancona testified that she stopped as she approached the stop sign (Movant's Ex. M pp ). Although Ancona testified that she did not see any traffic (Id., p. 27), she also stated that she " stepped on the gas pedal after I took off, I had to get across the traffic " (Id., p. 28). Crennel, the driver ofthe bus, testified that he was driving at thirty miles per hour (Movant's Ex., p. 26). When he saw the Ancona vehicle, he attempted to avoid it by moving to the right and applying the brakes real hard (Id., p. 35). A driver who fails to yield the right of way after stopping at a stop sign is in violation of Vehicle and Traffc Law ~ 1142(a) and is negligent as a matter of law (citations omitted)... and the driver with the right of way ' is entitled to anticipate that the other motorist wil obey the traffc law requiring him or her to yield' ( citations omitted). ' The question of whether the driver stopped at the stop sign is not dispositive where the evidence establishes that he or she failed to yield even if he or she did stop ' (citations omitted)" (Thompson v. Schmitt, NYS2d, 2010 WL (2d Dept. 2010)). Movant has demonstrated that defendant Ancona was negligent as a matter of law for proceeding into an intersection governed by a stop sign without yielding to the Bus and Crennel vehicle which had the right of way ( Disher v. Ahern 294 AD2d 393 (2d Dept. 2002); Zelaer Cappadona 294 AD2d 431 (2d Dept. 2002)). Once this initial burden has been met by defendant, the burden then shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve (Alvarez" 68 NY2d at 324). Defendant Ancona does not oppose Gitter s motion since she was a passenger but opposes the motion of the Bus and Crennel defendants. In opposition, counsel for Ancona attempts to create an issue of fact contending that the Bus and Crennel defendants failed to take appropriate action to avoid the occurrence. Under the circumstances, the submissions are insufficient to raise a triable issue of fact. Accordingly, the motions are granted as against Ancona, and the complaint in 2 and any cross claims in the remaining actions are dismissed. The remaining actions shall proceed on the issue of damages only, and the captions are amended to read as follows:

4 COAD v. CRENNL, et al. ( GITTER V. METROPOLITAN, et al. ( CYNTHIA COAD and CHRISTOPHER COAD her husband Plaintiffs, Page 4 CARMEN ANCONA SUZANNE GITTER Plaintiff Now CARMEN ANCONA " This decision constitutes the order of the court. Dated: Attornevs of Record g-/lj Michael R. Franzese, Esq. Attorney for Plaintiffs in 114 Old Country Road, Suite 652 Mineola, New York HO THOt P. OMAS P. PHELAN, J. ENTERED JUL NASSAU COUNTY COUNTY CLERK' S OFFIC( Salenger, Sack, Schwartz & Kimmel, Esqs. Attention: John Zervopoulos Attorneys for Plaintiffs in 180 Froehlich Farm Boulevard Woodbury, New York 11797

5 COAD v. CRENNL, et al. ( GITTER v. METROPOLITAN, et al. ( Page 5 Tiger & Daguanno, LLP Attention: Stephen B. Tiger, Esq. Attorneys for Plaintiff in 31 East 32nd Street, 4 Floor New York, New York 10016' Zakukiewicz, Puzo & Morrissey, LLP Attention: Douglas E. Hommel, Esq. Attorneys for Defendants in Action Nos. 1, 2 and 3 MT A Long Island-Bus, Metropolita Suburban Bus Authority, Metropolita Tranporttion Authority, Metropolitan Commuter Transportation Authority and Charles Crennel 2701 Sunrise Highway, Suite 2 O. Box 389 Islip Terrace, New York 11752