Ponticello v. Wilhelm , 671 N.Y.S.2d 315 ( 1998 )

—In an action to recover damages for personal injuries, etc., the plaintiff Santo Ponticello appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated May 8, 1997, which denied his motion for summary judgment dismissing the defendants’ counterclaim and his cross motion for summary judgment on the issue of liability.

Ordered that the order is reversed, on the law, with costs, the motion and the cross motion are granted, the counterclaim is dismissed, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages.

The undisputed evidence in the record that the defendants’ approach to the intersection where the subject accident occurred was controlled by a stop sign, and that the plaintiffs had the right of way, establishes that the defendant Wilma Wilhelm violated Vehicle and Traffic Law § 1142 (a) by failing to yield to the plaintiffs’ approaching vehicle (see, Mohamed v Frische, 223 AD2d 628). The plaintiffs have thus made out a prima facie case that the accident and resulting injuries to the plaintiffs were caused by Wilhelm’s negligence.

The evidence submitted by the defendants fails to raise a triable issue of fact (see, CPLR 3212 [b]) with regard to the issue of liability. O’Brien, J. P., Thompson, Friedmann and Gold-stein, JJ., concur.