| Bonilla v Calabria |
| 2011 NY Slip Op 00481 [80 AD3d 720] |
| January 25, 2011 |
| Appellate Division, Second Department |
| Angel Bonilla, Respondent, v Robert R. Calabria et al.,Appellants. |
—[*1] Day & Associates, P.C., Great Neck, N.Y. (Rose M. Day of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Tanenbaum, J.), dated March 1, 2010, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is denied.
A driver who has the right-of-way is entitled to anticipate that other drivers will obey thetraffic laws requiring them to yield to the driver with the right-of-way (see Vehicle andTraffic Law §§ 1128, 1143; Jacino v Sugerman, 10 AD3d 593 [2004]). A driver who has theright-of-way, however, also has a duty to keep a proper lookout to avoid colliding with othervehicles (see Demant v Rochevet,43 AD3d 981 [2007]; Pena vSantana, 5 AD3d 649, 650 [2004]). "There can be more than one proximate cause of anaccident" (Cox v Nunez, 23 AD3d427, 427 [2005]; see Tapia v RoyalTours Serv., Inc., 67 AD3d 894 [2009]).
Here, in support of his motion for summary judgment, the plaintiff submitted the depositiontestimony of the parties, who presented conflicting testimony as to the facts surrounding theaccident. Accordingly, the plaintiff failed to establish, prima facie, that the defendant driver'salleged negligent operation of his vehicle was the sole proximate cause of the accident (see generally Todd v Godek, 71 AD3d872 [2010]; Malak v Wynder,56 AD3d 622 [2008]; Gordon vHonig, 40 AD3d 925 [2007]). In light of the plaintiff's failure to meet his prima facieburden, we need not consider the sufficiency of the defendants' opposition papers (seeAlvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Supreme Court shouldhave denied the plaintiff's motion for summary judgment on the issue of liability.
In light of our determination, we do not reach the defendants' remaining contention. Mastro,J.P., Chambers, Roman and Cohen, JJ., concur.