| Wilson v Rosedom |
| 2011 NY Slip Op 02001 [82 AD3d 970] |
| March 15, 2011 |
| Appellate Division, Second Department |
| Derek Wilson, Jr., Appellant, v Keith Rosedom et al.,Respondents. |
—[*1] James R. McCarl, Montgomery, N.Y., for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Dutchess County (Brands, J.), dated April 14, 2009, which denied his motionfor summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
A driver who has the right-of-way is entitled to anticipate that the other driver will obeytraffic laws which require him or her to yield (see Vehicle and Traffic Law § 1141;Kann v Maggies Paratransit Corp.,63 AD3d 792, 793 [2009]; Morenov Gomez, 58 AD3d 611, 612 [2009]; Palomo v Pozzi, 57 AD3d 498, 498 [2008]; Gabler v Marly Bldg. Supply Corp., 27AD3d 519, 520 [2006]; Moreback vMesquita, 17 AD3d 420, 421 [2005]). Moreover, a driver is negligent if he or she failedto see that which, through the proper use of senses, should have been seen (see Laino v Lucchese, 35 AD3d672, 672 [2006]; Berner vKoegel, 31 AD3d 591, 592 [2006]; Bongiovi v Hoffman, 18 AD3d 686, 687 [2005]; Bolta vLohan, 242 AD2d 356 [1997]). At the same time, a driver who has the right-of-way has aduty to exercise reasonable care to avoid a collision with another vehicle already in theintersection (see Cox v Nunez, 23AD3d 427, 427 [2005]). "There can be more than one proximate cause of an accident"(id.), and the issue of comparative negligence is generally a question for the jury todecide (see Sokolovsky v Mucip,Inc., 32 AD3d 1011 [2006]; seeRios v Johnson V.B.C., 17 AD3d 654, 656 [2005]).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law.However, in opposition, the affidavit of the defendant Keith Rosedom raised triable issues offact, including, but not limited to, which vehicle lawfully entered the intersection first.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment on the issue of liability. Mastro, J.P., Angiolillo, Balkin, Lott and Miller, JJ., concur.