| Fogel v Rizzo |
| 2012 NY Slip Op 00326 [91 AD3d 706] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Robert Fogel, Respondent, v Charles L. Rizzo et al.,Appellants. |
—[*1] Bongiorno Law Firm, PLLC, Mineola, N.Y. (Aaron C. Gross of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Queens County (Taylor, J.), dated May 12, 2011, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On March 25, 2008, the plaintiff allegedly was injured when the vehicle he was operatingcame into contact with a vehicle operated by the defendant Charles L. Rizzo, and owned by thedefendant Sandi J. Rizzo, who was a passenger in the Rizzo vehicle at the time of the accident.The impact between the two vehicles occurred as the plaintiff was attempting to change from theright lane to the left lane on the Cross Island Parkway service road near its intersection with160th Street in Queens. Thereafter, the plaintiff commenced this action against the defendants.The defendants moved for summary judgment dismissing the complaint. The Supreme Courtdenied the motion.
The defendants failed to make a prima facie showing of their entitlement to judgment as amatter of law. In support of their motion, they submitted, inter alia, their deposition transcripts,as well as the plaintiff's deposition transcript. The parties' deposition testimony was conflictingand revealed a factual dispute as to how and why the accident occurred. While a driver isnegligent if he or she makes an unsafe lane change (see Vehicle and Traffic Law §1128 [a]), or fails to see that which, through the proper use of one's senses, should have beenseen (see Allen v Echols, 88 AD3d926 [2011]), there can be more than one proximate cause of an accident (id.; see Pollack v Margolin, 84 AD3d1341, 1342 [2011]; Cox vNunez, 23 AD3d 427 [2005]), and the issue of comparative negligence is generally aquestion for the trier of fact (see Allen vEchols, 88 AD3d 926 [2011]; Wilson v Rosedom, 82 AD3d 970 [2011]). Here, the defendantsfailed to eliminate all triable issues of fact as to whether the plaintiff was negligent in theoperation of his vehicle, and whether any such negligence was the sole proximate cause of theaccident (see Boodlall v Herrera, 90AD3d 590 [2d Dept 2011]). Since the defendants failed to meet their prima facie burden, weneed not consider the sufficiency of the plaintiff's opposition papers (see Alvarez v ProspectHosp., 68 NY2d 320, [*2]324 [1986]).
Accordingly, the Supreme Court properly denied the defendants' motion for summaryjudgment dismissing the complaint. Rivera, J.P., Roman, Sgroi and Cohen, JJ., concur.