| Pollack v Margolin |
| 2011 NY Slip Op 04649 [84 AD3d 1341] |
| May 31, 2011 |
| Appellate Division, Second Department |
| David Pollack, Respondent, v Lance Margolin et al.,Appellants. |
—[*1] Silverstein & Kahn, P.C., Huntington, N.Y. (Larry Silverstein of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Pitts, J.), dated November 15, 2010, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendant driver correctly contends that, on the record presented, the plaintiff wasnegligent as a matter of law for failing to properly signal before changing lanes (seeVehicle and Traffic Law § 1163 [b]; Vainer v DiSalvo, 79 AD3d 1023, 1024[2010]). However, the defendant driver failed to establish, prima facie, that the plaintiff'snegligence was the sole proximate cause of the subject collision. There can be more than oneproximate cause and, thus, the proponent of a summary judgment motion has the burden ofestablishing freedom from comparative negligence as a matter of law (see Kim v Acosta,72 AD3d 648, 648-649 [2010]; Lopez v Reyes-Flores, 52 AD3d 785, 786 [2008];Cox v Nunez, 23 AD3d 427, 427-428 [2005]).
Here, although the defendant driver had the right-of-way and was entitled to anticipate thatthe plaintiff would obey the traffic laws (see Martin v Ali, 78 AD3d 1135, 1136 [2010];Yelder v Walters, 64 AD3d 762, 764 [2009]), the defendant driver also had a duty to usereasonable care to avoid a collision (see Bonilla v Calabria, 80 AD3d 720 [2011];Cox v Nunez, 23 AD3d at 427-428). The conflicting deposition testimony regarding thefacts surrounding the accident, which was submitted by the defendants in support of theirsummary judgment motion, failed to establish a prima facie case for judgment as a matter of law,since the evidence raised triable issues of fact as to whether the defendant driver contributed tothe happening of the accident (see Franzese v Consolidated Dairies, Inc., 83 AD3d 775[2011]; Kolivas v Kirchoff, 14 AD3d 493 [2005]). Accordingly, the Supreme Court'sdenial of the defendants' motion was proper even without considering the plaintiff's papers inopposition. Angiolillo, J.P., Dickerson, Belen and Sgroi, JJ., concur.