| Todd v Godek |
| 2010 NY Slip Op 02127 [71 AD3d 872] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Michael S. Todd, Appellant, v Chester S. Godek,Respondent. (And a Related Action.) |
—[*1] Richard T. Lau, Jericho, N.Y. (Nancy S. Goodman of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Nassau County (McCarty,J.), entered December 11, 2008, as granted the defendant's motion for summary judgmentdismissing 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.
The plaintiff, Michael S. Todd, was traveling in an easterly direction and made a left turnwhen his vehicle collided with a vehicle owned and operated by the defendant Chester S. Godek,which was traveling in a westerly direction. The Supreme Court granted Godek's motion forsummary judgment dismissing the complaint upon finding that Todd's violation of Vehicle andTraffic Law § 1141 was the sole proximate cause of the accident. We reverse.
A driver who has the right-of-way is entitled to anticipate that other motorists will obeytraffic laws which require them to yield the right-of-way (see Vehicle and Traffic Law§ 1141; Kann v MaggiesParatransit Corp., 63 AD3d 792 [2009]; Moreno v Gomez, 58 AD3d 611 [2009]; Palomo v Pozzi, 57 AD3d 498[2008]; Gabler v Marly Bldg. SupplyCorp., 27 AD3d 519 [2006]; Moreback v Mesquita, 17 AD3d 420 [2005]). Furthermore, adriver is negligent where an accident occurs because he or she has failed to see that whichthrough proper use of his or her senses he or she should have seen (see Laino v Lucchese, 35 AD3d672 [2006]; Berner v Koegel,31 AD3d 591 [2006]; Bongiovi vHoffman, 18 AD3d 686 [2005]; Bolta v Lohan, 242 AD2d 356 [1997]). Adriver who has the right-of-way has a duty to exercise reasonable care to avoid a collision withanother vehicle already in the intersection (see Demant v Rochevet, 43 AD3d 981 [2007]). "There can bemore than one proximate cause of an accident" (Cox v Nunez, 23 AD3d 427, 427 [2005]), and the issue ofcomparative negligence is generally a question for the jury to decide (see Sokolovsky v Mucip, Inc., 32AD3d 1011 [2006]; Valore vMcIntosh, 8 AD3d 662 [2004]).
Here, in support of his summary judgment motion, Godek submitted the depositiontestimony of the parties, who presented conflicting testimony as to the facts surrounding theaccident. [*2]Accordingly, Godek failed to establish, prima facie,that Todd's alleged violation of Vehicle and Traffic Law § 1141 was the sole proximatecause of the accident (see generallyKaplan v County of Nassau, 60 AD3d 816 [2009]; Lopez v Beltre, 59 AD3d 683 [2009]; Malak v Wynder, 56 AD3d 622[2008]; Gordon v Honig, 40 AD3d925 [2007]). In light of Godek's failure to meet his prima facie burden, we need not considerthe sufficiency of Todd's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Mastro, J.P., Leventhal, Lott and Austin, JJ., concur.