| Boodlall v Herrera |
| 2011 NY Slip Op 08892 [90 AD3d 590] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Tamesgwar Boodlall, Appellant, v Diana Herrera et al.,Respondents. |
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Brand Glick & Brand, P.C., Garden City, N.Y. (Heather Hammerman of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), datedSeptember 24, 2010, as granted that branch of the defendants' motion which was for summaryjudgment dismissing the complaint on the ground that they were not at fault in the happening ofthe accident.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the complaint onthe ground that they were not at fault in the happening of the accident is denied.
A driver who has the right-of-way is entitled to anticipate that the other driver will obeytraffic laws requiring them to yield to the driver with the right-of-way (see Vehicle andTraffic Law §§ 1143, 1173; see Sanabria v Paduch, 61 AD3d 839 [2009]; Mazza v Manzella, 49 AD3d 609[2008]; Yasinosky v Lenio, 28AD3d 652 [2006]; Ferrara v Castro, 283 AD2d 392 [2001]; Palumbo vHoltzer, 235 AD2d 409 [1997]). A driver who has the right-of-way, however, also has a dutyto keep a proper lookout to avoid colliding with other vehicles (see Bonilla v Calabria, 80 AD3d720 [2011]; Pena v Santana, 5AD3d 649 [2004]). "There can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d 427, 427[2005]; see Gardella v Esposito Foods,Inc., 80 AD3d 660 [2011]).
Here, in support of the motion, the defendants submitted the deposition testimony of theparties, who presented conflicting testimony as to the facts surrounding the accident. Thus, thedefendants failed to establish, prima facie, that the plaintiff's alleged negligent operation of hisvehicle was the sole proximate cause of the accident (see generally Bonilla v Calabria, 80 AD3d 720 [2011]; Todd v Godek, 71 AD3d 872[2010]). In light of the defendants' failure to meet their prima facie burden, we need not considerthe sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp., 68NY2d 320 [1986]).
Accordingly, the Supreme Court should have denied that branch of the defendants' [*2]motion which was for summary judgment dismissing the complainton the ground that they were not at fault in the happening of the accident. Skelos, J.P., Hall, Lottand Cohen, JJ., concur.