| Ruthinoski v Brinkman |
| 2009 NY Slip Op 05104 [63 AD3d 900] |
| June 16, 2009 |
| Appellate Division, Second Department |
| Carl T. Ruthinoski, Appellant, v John R. Brinkman,Respondent. |
—[*1] DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaugnessy of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated May 9,2008, as granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's motion for summary judgment dismissing the complaint is denied.
This appeal arises out of a collision between a motorcycle operated by the plaintiff and aminivan operated by the defendant, which occurred on Peconic Lane in Peconic, a roadway withtwo lanes of travel, one in each direction, separated by a double yellow line.
According to the plaintiff, his motorcycle came up behind the defendant's minivan, whichwas either stopped or moving very slowly. The minivan accelerated to approximately 30 milesper hour, and then gradually came to a complete stop. The minivan's turn signal was notactivated. After the minivan had been stopped for about five seconds, the plaintiff accelerated,crossed over into the other lane, and attempted to pass the minivan on the left. As he did so, theminivan began making a left turn. The plaintiff braked hard and was ejected from themotorcycle, which flipped over the plaintiff and struck the side of the minivan.
According to the defendant, he never came to a full stop on Peconic Lane. Rather, he wasdriving slowly, looking for his destination, and when he spotted it, he activated his turn signaland made a left turn. As he was making the turn, his minivan was struck by a motorcycle. Thedefendant did not see the motorcycle prior to the collision.
The plaintiff commenced this personal injury action against the defendant. The SupremeCourt granted the defendant's motion for summary judgment dismissing the complaint. Wereverse.
The defendant failed to establish his prima facie entitlement to judgment as a matter of law.Although the defendant established that the plaintiff's act of crossing over a double yellow lineinto an [*2]opposing lane of traffic was negligent as a matter oflaw (see Vehicle and Traffic Law § 1126 [a]; O'Connor v Lopane, 24AD3d 426 [2005]), the defendant did not demonstrate that the plaintiff's conduct was the soleproximate cause of the accident (see Exime v Williams, 45 AD3d 633 [2007]; cf.O'Connor v Lopane, 24 AD3d at 426). Viewing the evidence submitted in support of thedefendant's motion in the light most favorable to the nonmoving party (see FundamentalPortfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 [2006];Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610[1990]), there is a triable issue of fact as to whether any comparative negligence on thedefendant's part contributed to the accident (see Eastmond v Wen Po Wong, 300 AD2d344 [2002]; Batal v Associated Univs., 293 AD2d 558, 560 [2002]). Accordingly, thedefendant's motion for summary judgment dismissing the complaint should have been denied.Prudenti, P.J., Miller, Eng and Belen, JJ., concur.