| Sayed v Aviles |
| 2010 NY Slip Op 03430 [72 AD3d 1061] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Ahmad Shah Sayed, Appellant, v Victor E. Aviles et al.,Respondents. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Knipel, J.), dated May 27, 2009, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
This action arises out of a collision between the defendants' minivan school bus and theplaintiff's car, which allegedly occurred when the minivan school bus attempted to pass theplaintiff's double-parked car. In support of their motion for summary judgment, the defendantssubmitted the deposition transcripts of both the plaintiff and the defendant bus driver. In hisdeposition testimony, the defendant bus driver testified that the hazard lights on the plaintiff'sdouble-parked car were never on, that he saw the plaintiff enter his double-parked car and closethe door, and that the impact occurred when the plaintiff suddenly opened his car door just as thebus was attempting to pass his double-parked car. In contrast, the plaintiff testified that when hedouble-parked his car, he turned on his hazard lights and left his car, that when he returned a fewminutes later to move his car, he saw no oncoming traffic, and that he was attempting to enter hiscar when the impact occurred.
Contrary to the defendants' contention, their submissions in support of their motion failed toestablish, prima facie, that the sole proximate cause of the accident was that the plaintiffdouble-parked his car in violation of Vehicle and Traffic Law § 1202 (a) (2), and openedhis car door in the path of moving traffic without first ensuring that it was reasonably safe to doso in violation of Vehicle and Traffic Law § 1214. While the deposition testimony of thedefendant bus driver could support a finding that the plaintiff's conduct was the sole proximatecause of the accident (see Montesinos vCote, 46 AD3d 774 [2007]; Williams v Persaud, 19 AD3d 686 [2005]; Ferguson vGassman, 229 AD2d 464, 464-465 [1996]), according the plaintiff, as the opponent of themotion, every favorable inference from the parties' submissions (see Pierre-Louis v DeLonghi Am.,Inc., 66 AD3d 859, 862 [2009]; Gray v New York City Tr. Auth., 12 AD3d 638 [2004];Nicklas v [*2]Tedlen Realty Corp., 305 AD2d 385, 386[2003]), the defendants failed to meet their prima facie burden. The plaintiff's depositiontestimony raised triable issues of fact as to whether he violated Vehicle and Traffic Law §1214 and as to whether any causal connection between the plaintiff's violation of Vehicle andTraffic Law § 1202 (a) and the accident was severed by the defendant bus driver'snegligent failure to see what his senses reasonably should have observed: the plaintiff attemptingto enter his vehicle (see Crisano v Spellman, 294 AD2d 392 [2002]; Weeks vMackey, 261 AD2d 536 [1999]; Ferguson v Gassman, 229 AD2d at 464-465).Accordingly, the Supreme Court should have denied the defendants' motion for summaryjudgment.
In light of our determination, the plaintiff's remaining contention has been renderedacademic. Fisher, J.P., Dillon, Dickerson and Belen, JJ., concur.