Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion to dismiss the plaintiff's complaint:

In this motor-vehicle negligence action, plaintiff Mariluz Ramirez Mateo De Espinal ("Plaintiff"), seeks partial summary judgment on the question of the liability of the defendants, Yanill Luz Alvarez ("Alvarez"), Venture Leasing, LLC ("Venture Leasing") and Eddy Perez-Acosta ("Perez-Acosta", collectively "defendants"), for a motor vehicle accident that occurred in the County of the Bronx. Defendants oppose plaintiff's motion, and Perez-Acosta cross-moves for summary judgment declaring him without liability for the same incident. For the reasons set forth below, plaintiff's motion is granted as to Alvarez and Venture Leasing and denied as to Perez-Acosta. Perez-Acosta's cross-motion is granted.

Plaintiff's cause of action is for alleged personal injuries sustained on January 17, 2017, [*2]when the vehicle operated by Perez-Acosta, in which she was a passenger, collided with a vehicle owned by Venture Leasing and operated by Alvarez. According to her deposition testimony, plaintiff did not witness the accident but merely "felt the crash" (NYSCEF Doc No 22). In sum, plaintiff depicts herself as an innocent party deserving of summary judgment on the question of liability for her injuries (see Garcia v Tri-County Ambulette Service, Inc., 282 AD2d 206 [1st Dept 2001]["the right of an innocent passenger to summary judgment is not in any way restricted by potential issue of comparative negligence as between the drivers of two vehicles"]).

Perez-Acosta opposes and cross moves for judgment declaring him without liability representing that the incident occurred when Alvarez, while operating Venture Leasing's vehicle, failed to yield the right-of-way at an intersection stop sign causing her to collide with the right front side of his vehicle (NYSCEF Doc No 23). In short, Perez-Acosta argues that the complaint as asserted against him should be dismissed because Alvarez and Venture Leasing are solely liable to plaintiff for having failed to yield to him the right-of-way at a stop sign in violation of VTL § 1172[a].

Alvarez and Venture Leasing oppose the cross motion arguing that Perez-Acosta failed to see what he should have seen and to exercise reasonable care under the circumstances to avoid the accident. In opposing, they annex no competent evidence to their papers, but instead rely on Perez-Acosta's testimony to the effect that he saw their vehicle approaching the intersection five to six seconds prior to the impact (Id.).1 They cite Luke v McFadden, 199 AD3d 533 [2nd Dept 2014], among other cases, for the proposition that Perez-Acosta had sufficient time prior to the impact to have taken some evasive action to avoid same.

Summary judgment may only be granted when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is on the moving party to a make a prima facie showing of entitlement to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]). A failure to make that showing requires denial of the motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, then the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324). Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to raise a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Upon the record before the court, plaintiff has met her prima facie burden of establishing entitlement to partial summary judgment on the question of the liability of the collective defendants. To be sure, none of the defendants have proffered any argument suggesting that she, as a passenger involved in the two-vehicle incident, should bear any liability. It would be of no moment had they done so, a passive passenger cannot bear any liability for an accident in which she was injured (Garcia v Tri-County Ambulette Service, Inc., 282 AD2d at 206). Plaintiff's prima facie showing aside, the facts of this case, in the Appellate Division, First Department, also entitle Perez-Acosta to judgment on the question of liability as a matter of law.

In the Appellate Division, Second Department, evidence that one driver ran a stop sign does not preclude finding that comparative negligence on the part of the other driver contributed to the accident (see Luke v McFadden, 199 AD3d 533 [internal punctuation omitted]; citing, Incle v Byrne-Lowell, 115 AD3d 709, 710 [2nd Dept 2014][defendant moving for summary [*3]judgment must make a prima facie showing of freedom from comparative fault). It is unclear, however, whether that is the state of the law in the Appellate Division, First Department (see Sanchez v Lonero Transit, Inc., 100 AD3d 417 [1st Dept 2012][in granting summary judgment only assuming, arguendo, that comparative negligence was relevant in a stop sign case]). That said, notwithstanding Perez-Acosta's contradictory deposition testimony as to how much time prior to the impact he observed the Alvarez-Venture Leasing vehicle,2 this court finds that the accident at bar would not have occurred had Alvarez obeyed the stop sign controlling her lane of travel as she approached the intersection at issue.

Relatedly, it is well settled in the First Department that Perez-Acosta had no duty to anticipate that Alvarez would fail to stop at the stop sign (see Perez v Brux Cab Corp., 251 AD2d 157, 160 [1st Dept 1998]; VTL § 1172[a]). Absent such a duty, there can be no basis for a finding of comparative negligence as against him as a matter of law, the Second Department notwithstanding. Furthermore, any unsupported argument that Acosta-Perez might have somehow been able to avoid the accident, without more, amounts to little more than conclusory speculation and an expression of hope (Zuckerman v City of New York, 49 NY2d at 562).

Accordingly, it is hereby:

ORDERED that plaintiff's motion for partial summary judgment as to defendants Venture Leasing LLC, and Yanill Luz Alvarez, is GRANTED, and it is further,

ORDERED that plaintiff's motion for partial summary judgment as to defendant Eddy Perez-Acosta, is DENIED, and it is further,

ORDERED that defendant Eddy Perez-Acosta's cross-motion for summary judgment as to plaintiff, and defendants Venture Leasing LLC, and Yanill Luz Alvarez, is GRANTED, it is further,

ORDERED that plaintiff and defendants, Venture Leasing LLC, and Yanill Luz Alvarez, shall appear for a pre-trial conference herein in courtroom 708 on September 9, 2024 at 9:30 a.m.; and it is further,

ORDERED that defendant Eddy Perez-Acosta shall serve a copy of this Order with notice of entry within thirty (30) days of entry of this Order.

The foregoing constitutes the Decision and Order of the Court.