| Rotondi v Rao |
| 2008 NY Slip Op 01936 [49 AD3d 520] |
| March 4, 2008 |
| Appellate Division, Second Department |
| Angela Rotondi et al., Respondents, v Gerald Rao et al.,Respondents, and Alessandro Curatolo et al., Appellants. |
—[*1] Brad A. Kauffman, PLLC, New York, N.Y., for plaintiffs-respondents. Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for defendants-respondents.
In an action to recover damages for personal injuries, etc., the defendants AlessandroCuratolo and Frank Curatolo appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Bayne, J.), dated October 23, 2006, as denied their cross motionfor summary judgment dismissing the complaint and all cross claims insofar as asserted againstthem.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff Angela Rotondi was injured in a collision involving a vehicle operated by thedefendant Gerald Rao, in which she was a passenger, and a vehicle operated by the defendantAlessandro Curatolo and owned by the defendant Frank Curatolo. The accident occurred at theintersection of 16th Avenue and 68th Street in Brooklyn. It is undisputed that the Rao vehicle,which was proceeding along 68th Street, was faced with a stop sign at the intersection, whilethere was no traffic control device for the Curatolo vehicle, which was proceeding along 16thAvenue. A driver with the right-of-way has a duty to use reasonable care to avoid a collision (see Cox v Nunez, 23 AD3d 427[2005]). Moreover, there can be more than one proximate cause of an accident (id. at427). In this case, the deposition testimony adduced from the defendant Alessandro Curatolo didnot eliminate all issues of fact as to whether he was operating his vehicle in excess of the speedlimit, and, if so, as to whether such conduct contributed to the accident (see Romano v 202Corp.,[*2]305 AD2d 576, 577 [2003]). Therefore, theevidence submitted by the defendants Alessandro Curatolo and Frank Curatolo in support of theircross motion failed to establish their prima facie entitlement to judgment as a matter of law(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Under these circumstances, itis not necessary to consider the sufficiency of the opposition papers submitted by the respondents(id. at 324). Mastro, J.P., Florio, Miller and Dickerson, JJ., concur.