| Allen v Echols |
| 2011 NY Slip Op 07592 [88 AD3d 926] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Cynthia Allen, Respondent, v Hannah M. Echols,Appellant. |
—[*1] D'Agostino & Associates, P.C., Staten Island, N.Y. (Glen Devora of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Richmond County (Maltese, J.), dated April 19, 2011, which denied hermotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
This action arises out of an automobile collision which occurred on Parkhill Avenue inStaten Island. The defendant was returning home to her apartment building on Parkhill Avenueand operating her vehicle in the lane of travel across the street from her residence. The plaintiffwas operating her vehicle in the same lane of travel behind the defendant's vehicle. Uponnoticing a vacant parking space located across the street, in front of her apartment building, thedefendant turned her vehicle to the left and attempted to make a U-turn in order to secure theparking space. At some point during this maneuver, the plaintiff's vehicle and the defendant'svehicle collided. Thereafter, the plaintiff commenced this action against the defendant. Thedefendant moved for summary judgment dismissing the complaint on the ground that theplaintiff's alleged negligence was the sole proximate cause of the accident. The Supreme Courtdenied the motion. We affirm.
The defendant failed to make a prima facie showing of her entitlement to judgment as amatter of law. In support of her motion, she submitted her deposition transcript and portions ofthe plaintiff's deposition transcript. The parties' deposition testimony was conflicting andrevealed a factual dispute as to how, where, and why the accident occurred. While a driver isnegligent if he or she fails to see that which, through the proper use of one's senses, should havebeen seen (see Wilson v Rosedom,82 AD3d 970 [2011]), there can be more than one proximate cause of an accident (see Pollack v Margolin, 84 AD3d1341, 1342 [2011]; Myles vBlain, 81 AD3d 798 [2011]; Kim v Acosta, 72 AD3d 648 [2010]; Cox v Nunez, 23 AD3d 427[2005]), and the issue of comparative fault is generally a question for the trier of fact (see Wilson v Rosedom, 82 AD3d970 [2011]).
Here, the defendant's evidentiary submissions were insufficient to eliminate all issues [*2]regarding the facts surrounding the accident and whether either orboth parties were negligent (see Pollack v Margolin, 84 AD3d at 1342; Myles vBlain, 81 AD3d at 798-799; Sayed vAviles, 72 AD3d 1061, 1062 [2010]; Kolivas v Kirchoff, 14 AD3d 493 [2005]; Stoehr v Levere,183 AD2d 886 [1992]).
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint. Dillon, J.P., Balkin, Eng and Cohen, JJ., concur.