| Kim v Acosta |
| 2010 NY Slip Op 02925 [72 AD3d 648] |
| April 6, 2010 |
| Appellate Division, Second Department |
| Joel Kim et al., Appellants, v Carlos F. Acosta,Respondent. |
—[*1] Stewart H. Friedman, Lake Success, N.Y. (William C. Muller of counsel), forrespondent.
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, Queens County (Kitzes, J.), entered May8, 2009, as granted that branch of the defendant's motion which was for summary judgmentdismissing the complaint on the ground that the conduct of the plaintiff Eun Youn Kim was thesole proximate cause of the accident.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the complaint onthe ground that the conduct of the plaintiff Eun Youn Kim was the sole proximate cause of theaccident is denied.
During the afternoon of April 23, 2005, a vehicle operated and owned by the defendantcollided with a vehicle operated by the plaintiff Eun Youn Kim (hereinafter the mother) at theintersection of 81st Street and 31st Avenue in Queens. The mother was traveling northbound on81st Street with her son, the infant plaintiff Joel Kim, as a front-seat passenger. The defendantwas traveling westbound on 31st Avenue. At the subject intersection, northbound 81st Street isgoverned by a stop sign, but westbound 31st Avenue is not governed by any traffic control signor device.
In support of that branch of his motion which was for summary judgment dismissing thecomplaint on the ground that the mother's conduct was the sole proximate cause of the accident,the defendant failed to submit evidence sufficient to establish his entitlement to judgment as amatter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Virzi v Fraser, 51 AD3d 784[2008]). " 'There can be more than one proximate cause of an accident' " (Lopez v Reyes-Flores, 52 AD3d785, 786 [2008], quoting Cox vNunez, 23 AD3d 427, 427 [2005]). Although a stop sign governed the intersection fortraffic proceeding northbound along 81st Street at its intersection with 31st Avenue, a triableissue of fact exists as to whether the defendant was free from negligence upon entering theintersection from westbound 31st Avenue and, if not, whether that negligence was a proximatecause of the accident (see Lopez v Reyes-Flores, 52 AD3d at 786; Virzi v Fraser, 51 AD3d 784[2008]).
Accordingly, the Supreme Court should have denied that branch of the defendant's [*2]motion which was for summary judgment dismissing the complainton the ground that the mother's conduct was the sole proximate cause of the accident.
The parties' remaining contentions either are without merit or have been rendered academicby our determination. Dillon, J.P., Balkin, Dickerson and Lott, JJ., concur.