| Topalis v Zwolski |
| 2010 NY Slip Op 06305 [76 AD3d 524] |
| August 3, 2010 |
| Appellate Division, Second Department |
| Josephine Topalis et al., Appellants, v Kenneth E.Zwolski, Respondent, et al., Defendant. |
—[*1] Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,Uniondale, N.Y. [Kathleen D. Foley], of counsel), for respondent.
In an action to recover damages for wrongful death, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), datedApril 6, 2009, as granted that branch of the cross motion of the defendant Kenneth E. Zwolskiwhich was for summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the cross motion of the defendant Kenneth E. Zwolski which was for summaryjudgment dismissing the complaint insofar as asserted against him is denied.
The plaintiffs' decedent allegedly was crossing the street within a crosswalk against thetraffic light when he was struck by a vehicle operated by the defendant Kenneth E. Zwolski at ornear an intersection. The plaintiffs' decedent had already walked across three lanes of trafficwhen he came into contact with the middle of the front of the Zwolski vehicle. Zwolski testifiedat his deposition that it was dark outside, that the decedent was wearing dark clothing, and thathe did not see any pedestrians prior to the impact. A police officer testified at a DMV hearingthat a street lamp at the intersection illuminated the westbound lane in which Zwolski wastraveling.
A driver is bound to see what is there to be seen with the proper use of his senses (see Spicola v Piracci, 2 AD3d1368 [2003]; Gonzalez v County of Suffolk, 277 AD2d 350 [2000]), and there canbe more than one proximate cause of an accident (see generally Tapia v Royal Tours Serv., Inc., 67 AD3d 894, 896[2009]; Cox v Nunez, 23 AD3d427 [2005]; Romano v 202 Corp., 305 AD2d 576 [2003]). Under the circumstances,Zwolski failed to submit evidence sufficient to establish, prima facie, that the decedent's allegednegligence was the sole proximate cause of the accident, that he kept a proper lookout, and thathis alleged negligence, if any, did not contribute to the happening of the accident (see Spicola v Piracci, 2 AD3d1368 [2003]; Gonzalez v County of Suffolk, 277 AD2d at 350). In light of ourdetermination, we need not review the sufficiency of the plaintiffs' opposition papers. Covello,J.P., Angiolillo, Leventhal and Belen, JJ., concur.