| Gray v Dembeck |
| 2008 NY Slip Op 01709 [48 AD3d 748] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Sally Gray et al., Appellants, v Melissa Dembeck et al.,Defendants, and Jerry R. Simcik et al., Respondents. |
—[*1] James W. Borkowski, White Plains, N.Y., for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Orange County (Allesandro, J.), datedJanuary 30, 2007, as granted the motion of the defendants Jerry R. Simcik and Island Nameplate,Inc., for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendants Jerry R. Simcik and Island Nameplate, Inc., for summary judgmentdismissing the complaint insofar as asserted against them is denied.
The plaintiffs, who were passengers in a motor vehicle owned by the defendant IslandNameplate, Inc. (hereinafter Island), and operated by the defendant Jerry R. Simcik (hereinafterSimcik), seek damages for personal injuries allegedly sustained as a result of a two-vehiclecollision that occurred at approximately 8:50 p.m. on May 13, 2005, at the intersection of EchoLake Road and Golf Links Road in the Town of Waywayanda, County of Orange. At that date,time, and place, the Simcik vehicle was proceeding in its lane of travel on Golf Links Road, atwo-lane road with a lane of traffic in each direction separated by a double yellow line, at a speedsomewhat under the 35 mile-per-hour speed limit. The defendant Melissa Dembeck (hereinafterDembeck), operated the second vehicle on Golf Links Road in the opposite direction, intendingto make a left hand turn onto Echo Lake Road at the four-way intersection.[*2]
Dembeck testified at her deposition that both vehicles hadactivated left directional signals and, believing that Simcik was about to turn left in his oppositedirection of travel, she initiated her own left turn at the intersection. At his deposition, Simcikdenied that his left directional signal was on, stating that his most recent turn had been to theright, he did not intend on making any turn at the intersection, and he remained at all times in hisown lane of travel. The accident occurred within the intersection when Dembeck turned left intothe path of Simcik's oncoming vehicle, which traveled straight.
In the order appealed from, the Supreme Court granted Simcik and Island summary judgmenton the issue of common-law liability, finding that Dembeck's failure to yield the right-of-way toSimcik in violation of Vehicle and Traffic Law § 1141 was the sole proximate cause of theaccident.
Simcik and Island established their prima facie entitlement to summary judgment bydemonstrating that Dembeck failed to yield the right of way when making her left-hand turn atthe intersection, in violation of Vehicle and Traffic Law § 1141. While Dembeck'sviolation of Vehicle and Traffic Law § 1141 constituted negligence (see Gabler vMarly Bldg. Supply Corp., 27 AD3d 519, 520 [2006]; Nunziata v Birchell, 238AD2d 555, 556 [1997]) and is a basis for a finding of liability against her (see Casaregola vFarkouh, 1 AD3d 306, 307 [2003]), there may be more than one proximate cause of anoccurrence, raising issues of comparative negligence (see Scibelli v Hopchick, 27 AD3d720 [2006]; Boston v Dunham, 274 AD2d 708, 709-710 [2000]). Here, issues of factexist as to whether Simcik's left turn signal was activated and, if so, whether by activating his leftturn signal under the circumstances then present, Simcik violated the standard of reasonable careexpected of drivers and contributed to the occurrence of the accident by falsely manifesting anintention to turn left (see Casaregola v Farkouh, 1 AD3d 306, 307 [2003]; DiSalvo vHiller, 2 AD3d 1386, 1387 [2003]; Harris v Moyer, 255 AD2d 890, 891 [1998]).Therefore, the Supreme Court should have denied the motion of Simcik and Island for summaryjudgment dismissing the complaint insofar as asserted against them. Spolzino, J.P., Dillon,Angiolillo and Dickerson, JJ., concur.