| Jahangir v Logan Bus Co., Inc. |
| 2011 NY Slip Op 08729 [89 AD3d 1064] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Muhamad Jahangir, Individually and as Administrator of the Estate ofShohana Shami, Deceased, Respondent, v Logan Bus Co., Inc., et al.,Appellants. |
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John Chambers, P.C., New York, N.Y. (Perry D. Silver and Daniel B. Linson of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, the defendants appeal from an orderof the Supreme Court, Queens County (Mayersohn, J.), entered May 18, 2010, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In support of the defendants' motion for summary judgment they established their prima facieentitlement to judgment as a matter of law by providing sufficient evidence that the plaintiff's decedent,Shohana Shami (hereinafter the decedent), darted out from between parked vehicles, away from anycrosswalk, and directly into the path of the defendants' minibus, leaving the defendant driver unable toavoid contact with the decedent (see Afghaniv Metropolitan Suburban Bus Auth., 45 AD3d 511, 512 [2007]; Ledbetter v Johnson, 27 AD3d 698[2006]; Mancia v Metropolitan Tr. Auth.Long Is. Bus, 14 AD3d 665 [2005]; Sheppeard v Murci, 306 AD2d 268, 268-269[2003]; see also Johnson v Lovett, 285 AD2d 627, 627 [2001]; Carrasco vMonteforte, 266 AD2d 330, 331 [1999]).
In opposition, the plaintiff raised a triable issue of fact. Contrary to the defendants' assertions onappeal, the affidavit of a nonparty witness was not inconsistent with his prior signed witness statement inthe police accident report, and, thus, did not constitute an attempt to create a feigned issue of fact (see e.g. Kievman v Philip, 84 AD3d1031, 1033 [2011]). The affidavit, at most, provided more detail than was provided to police atthe scene of the accident. In the affidavit, the nonparty witness, in whose car the decedent had been apassenger, recalled that when the decedent exited his car, she crossed quickly in front of his car andstopped in the area between his car and a bus which was stopped directly in front of his car. As she didthis, she stuck her head out "directly above" the double-yellow line separating eastbound andwestbound traffic on Jamaica Avenue in Queens for about two to three seconds, at which point she wasstruck in the head with the driver's side mirror of the defendants' minibus. There can be more than oneproximate cause of an accident, and the issue of comparative negligence is generally a question for thejury to decide (see Cox v Weil, 86AD3d 620, 621 [2011]; Wilson vRosedom, 82 AD3d 970, 970 [2011]). The fact that the decedent's head may [*2]have been directly over the double-yellow line when she was strucksuggests that the mirror may have been straddling the double-yellow line, in violation of Vehicle andTraffic Law § 1128 (a). Thus, an issue of fact exists as to whether there was a statutory violationcommitted by the defendant driver and, if so, whether it was a proximate cause of the accident. Rivera,J.P., Dickerson, Eng and Roman, JJ., concur.