| Gause v Martinez |
| 2012 NY Slip Op 00178 [91 AD3d 595] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Laurel E. Gause, Plaintiff/Counterclaim Defendant-Respondent,and Darryl L. Gause, Respondent, v Carlos Martinez, Defendant/CounterclaimPlaintiff-Appellant. |
—[*1] Rubenstein & Rynecki, Brooklyn, N.Y. (Kliopatra Vrontos of counsel), forplaintiffs-respondents. Picciano & Scahill, P.C., Westbury, N.Y. (Frances J. Scahill and Andrea E. Ferrucci ofcounsel), for plaintiff/counterclaim defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendant/counterclaimplaintiff appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated May10, 2011, which granted the motion of the plaintiff/counterclaim defendant for summaryjudgment dismissing the counterclaim and granted the plaintiffs' separate cross motion forsummary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with one bill of costs, and the motion of theplaintiff/counterclaim defendant for summary judgment dismissing the counterclaim and theplaintiffs' cross motion for summary judgment on the issue of liability are denied.
The plaintiff/counterclaim defendant, Laurel E. Gause (hereinafter Gause), was travelingsouthbound on Pennsylvania Avenue, in Brooklyn, when she was involved in a motor vehicleaccident with a vehicle driven by the defendant/counterclaim plaintiff (hereinafter the defendant),which was traveling in the opposite direction on the same street. The accident occurred as thedefendant was making a left turn onto Twin Pines Drive at its intersection with PennsylvaniaAvenue.
Thereafter, Gause and her husband, suing derivatively, commenced this action against thedefendant, and the defendant counterclaimed against Gause. Gause moved for summaryjudgment dismissing the defendant's counterclaim against her. The plaintiffs separatelycross-moved for summary judgment on the issue of liability. The Supreme Court granted themotion and the cross motion, and the defendant appeals. We reverse.
Vehicle and Traffic Law § 1141, provides, in relevant part, that:[*2] "The driver of a vehicle intending to turn to the left within anintersection . . . shall yield the right of way to any vehicle approaching from theopposite direction which is within the intersection or so close as to constitute an immediatehazard."
A plaintiff driver is entitled to judgment as a matter of law on the issue of liability if he orshe demonstrates that the sole proximate cause of an accident was the defendant driver's violationof Vehicle and Traffic Law § 1141 in turning left directly into the path of the plaintiff'soncoming vehicle which was lawfully present in the intersection (see Ahern v Lanaia, 85 AD3d 696,696 [2011]; Loch v Garber, 69AD3d 814, 815 [2010]; Berner vKoegel, 31 AD3d 591, 592 [2006]; Gabler v Marly Bldg. Supply Corp., 27 AD3d 519, 520 [2006]).The operator of a vehicle with the right-of-way is entitled to assume that the opposing driver willobey the traffic laws requiring him or her to yield (see Ahern v Lanaia, 85 AD3d at 696;Mohammad v Ning, 72 AD3d913, 914 [2010]; Loch v Garber, 69 AD3d at 816; Yelder v Walters, 64 AD3d 762,764 [2009]; Almonte v Tobias, 36AD3d 636 [2007]; Berner v Koegel, 31 AD3d at 592-593). However, "[a] driverwho has the right-of-way has a duty to exercise reasonable care to avoid a collision with anothervehicle already in the intersection" (Todd v Godek, 71 AD3d 872, 872 [2010]).
" 'There can be more than one proximate cause of an accident' " (Lopez v Reyes-Flores, 52 AD3d785, 786 [2008], quoting Cox vNunez, 23 AD3d 427, 427 [2005]; see Allen v Echols, 88 AD3d 926, 927 [2011]). As a result, "theproponent of a summary judgment motion has the burden of establishing freedom fromcomparative negligence as a matter of law" (Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; see Gardella v Esposito Foods, Inc., 80AD3d 660, 660 [2011]). "[T]he issue of comparative fault is generally a question for the trierof fact" (Allen v Echols, 88 AD3d at 927).
Here, Gause, in support of her motion for summary judgment dismissing the counterclaim,and the plaintiffs, in support of their cross motion for summary judgment on the issue of liability,submitted the deposition transcripts of both Gause and the defendant, which containedconflicting testimony as to the facts surrounding the accident, including, but not limited to, theissue concerning which vehicle lawfully entered the intersection first. Thus, the evidence did notestablish, prima facie, that the defendant violated Vehicle and Traffic Law § 1141, or thatif he did, such violation was the sole proximate cause of the accident (see Todd v Godek, 71 AD3d 872[2010]; Lopez v Reyes-Flores, 52 AD3d at 786). Accordingly, the Supreme Court shouldhave denied Gause's motion for summary judgment dismissing the counterclaim and theplaintiffs' cross motion for summary judgment on the issue of liability.
In light of our determination, we need not examine the sufficiency of the defendant'sopposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).Skelos, J.P., Belen, Lott and Cohen, JJ., concur. [Prior Case History: 2011 NY Slip Op31491(U).]