| Gardner v Smith |
| 2009 NY Slip Op 04857 [63 AD3d 783] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Silvester Gardner, Respondent, v Harold G. Smith,Defendant, and Theresa L. Brady et al., Appellants. |
—[*1] Jacoby & Meyers, LLP (Finkelstein & Partners, LLP, Newburgh, N.Y. [James W.Shuttleworth III], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Theresa L. Brady andSean Brady appeal from an order of the Supreme Court, Queens County (Satterfield, J.), enteredMay 1, 2008, which denied their motion for summary judgment dismissing the complaint insofaras asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured in a three-vehicle collision in Jamaica. The plaintiff'svehicle was proceeding west on Linden Boulevard when it was struck by a vehicle operated bythe defendant Sean Brady and owned by the defendant Theresa L. Brady (hereinafter theappellants). The appellants' vehicle had been proceeding east on Linden Boulevard, when it wasstruck by a vehicle operated by the defendant Harold G. Smith, after he allegedly failed to yieldthe right-of-way at a stop sign while proceeding south on 146th Street. The Supreme Courtdenied the appellants' motion for summary judgment dismissing the complaint insofar as assertedagainst them, and we affirm.
"There can be more than one proximate cause of an accident. The fact that [a party] allegedly'ran' the stop sign would not preclude a finding that comparative negligence by [another party]contributed to the accident" (Cox vNunez, 23 AD3d 427, 427 [2005] [citations omitted]; see Romano v 202 Corp.,305 AD2d 576, 577 [2003]). "A driver with the right-of-way has a duty to use reasonable care toavoid a collision" (Cox v Nunez, 23 AD3d at 427; see Siegel v Sweeney, 266AD2d 200 [1999]).
Accordingly, while the appellants established their prima facie entitlement to judgment as amatter of law by demonstrating that Smith failed to stop at the stop sign, the plaintiff raised atriable issue of fact by demonstrating, through Smith's affidavit, that the allegedly negligentconduct of Sean Brady may have contributed to the accident (see Campbell-Lopez v Cruz, 31 AD3d 475 [2006]; Cox vNunez, 23 AD3d at 428; Romano v 202 Corp., 305 AD2d at 577; Bodner vGreenwald, [*2]296 AD2d 564 [2002]). Thus, there aretriable issues of fact as to whether Sean Brady used reasonable care to avoid the collision, on thebasis of which the Supreme Court correctly denied the appellants' motion for summary judgmentdismissing the complaint insofar as asserted against them (see Cox v Nunez, 23 AD3d at428; Romano v 202 Corp., 305 AD2d at 577; Siegel v Sweeney, 266 AD2d at201; see also Vehicle and Traffic Law § 1142 [a]). Spolzino, J.P., Angiolillo,Leventhal and Lott, JJ., concur.