Defendant-Operator With Right-of-Way Wins Dismissal

Not every intersection accident is a ‘he said/she said’ toss up for the jury to decide.

The First Department recently held that summary judgment dismissal was properly granted to the defendants, vehicle owner and operator, in an intersection accident where plaintiff’s vehicle was controlled by a stop sign, in the case of Yahaira Lugo v. Daytona Auto Sales, Inc., et al, 123 N.Y.S.3d 496, 2020 N.Y. Slip Op. 03199 (1st Dep’t 2020).  The defendants’ evidence established that the cause of the accident was the negligence of the driver of plaintiff’s vehicle, who failed to obey a stop sign in violation of New York’s Vehicle and Traffic Law Sect. 1142, which statute mandates that the driver of a vehicle approaching a stop sign shall stop and yield the right of way to any vehicle which has entered the intersection from another roadway or which is approaching so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.

In affirming the order granting dismissal, the court in Lugo cited to its prior decision in Namisnak v. Martin, 244 A.D.2d 258, 260, 664 N.Y.S.2d 435 (1st Dep’t 1997) for its reasoning that defendants, with the right-of-way at the intersection where the collision occurred were “entitled to anticipate that other vehicles will obey the traffic laws that require them to yield”.  Id.

The Lugo Court rejected plaintiff’s contention that the defendants’ vehicle may have been driving over the posted speed limit as being insufficient to raise a triable issue of fact as to comparative negligence, since there is no evidence it could have contributed to the accident.  Lugo, 123 N.Y.S.3d 496.

Established precedent is that a “presumption of negligence” arises from a failure to yield the right of way at a stop sign, and that bare speculation that another driver was “going fast” is not enough to overcome the presumption of negligence or to create and issue of fact for trial.  Murchison v. Incognoli, 5 A.D.3d 271, 773 N.Y.S.2d 299 (1st Dep’t 2004).  In another similar stop sign case, one driver’s statement that he may have been driving “five miles over the posted speed limit of 30 miles per hour” was insufficient to raise an issue of fact as to comparative negligence since there is no evidence that it could have contributed to the collision.  Martinez v. Cofer, 128 A.D.3d 421, 8 N.Y.S.3d 212 (1st Dep’t 2015).

The cases highlight how following the rules of the road, and obeying stop signs in particular, can lead to favorable rulings and victory in court.


Mandatory, Non-Binding Arbitration Arrives In New York

On May 14, 2019, the New York State Unified Court System announced that it will begin rollout and implementation of a “presumptive” alternative dispute resolution (“ADR”) program [1], effectively bringing mandatory mediation to the New York System court system by the end of 2019.  The Presumptive ADR program is being implemented and modeled from similar practice in other jurisdictions, with a special focus eyeing New Jersey, where an automatic presumptive mediation program has been in place for more than a decade [2].  Local protocols and best practices are being developed by the Administrative Judges of each of New York’s 13 Judicial Districts to facilitate the process.

For the Supreme Court, Kings County in Brooklyn, the new rules for presumptive mediation are set to take effect on October 1, 2019.  All cases in Brooklyn where the Request for Judicial Intervention is filed on or after October 1, 2019 will be required to participate in the mediation program.  Mediations will begin in November, and will be scheduled 90 days from the date of the RJI.  Attorneys will be given 30 minutes of no-cost mediation, after which free half-hour the cost will be $400 per hour.  There will be an opt-out provision, available by order to show cause or by an in-person application to the mediator, if all parties agree that the mediation would not be feasible [3].  Court officials are estimating that nearly 20,000 mediation conferences will be held on Kings County civil cases in the first year [4].

Hon. George Silver, deputy chief administrative judge for the NYC courts has expressed his optimism that Presumptive ADR will benefit litigants and the court system alike, freeing up judicial resources for the more difficult cases.  “What we’re really doing, and it’s to the benefit of everyone, is we’re looking at cases earlier than later.  Certainly we know that there are cases that will never settle and will have to go to trial, but there certainly are that we can identify, and if we can settle 15 to 20 percent of cases [in Presumptive ADR], that leaves room for judges and everyone to work on more difficult cases.” [5].



[1] A copy of the press release is available herehttps://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdf

[2] “New York Courts to Begin Presumptive Mediation for Civil Cases Later This Year”, New York Law Journal, May 16, 2019 by Dan M. Clark  https://www.law.com/newyorklawjournal/2019/05/16/new-york-courts-to-begin-presumptive-mediation-for-civil-cases-later-this-year/

[3] “Dear Colleagues: Kings County Mediation Rules”, open letter dated August 28, 2019 by NYSTLA President Michele S. Mirman

[4] “Brooklyn Supreme Court expects 20,000 cases to be mediated each year”, Brooklyn Daily Eagle September 4, 2019, by Rob Abruzzese.

[5] “Columbian Lawyers get a crash course in new presumptive mediation program”, Brooklyn Daily Eagle September 6, 2019, by Rob Abruzzese.

New York’s Office of Court Administration has announced its intent to adopt the Uniform Mediation Act (“UMA”) as promulgated by the National Conference of Commissioners of Uniform State Laws,

[https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2019-CivilPractice.pdf]  The new rules regarding mediation will become Article 74 of the CPLR and be known as the ‘Uniform Mediation Act’.  There will be a waiver provision, provided in CPLR §7404