| Winner v Star Cruiser Transp., Inc. |
| 2012 NY Slip Op 03831 [95 AD3d 1109] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Isaac Winner et al., Appellants, v Star CruiserTransportation, Inc., et al., Respondents. |
—[*1] Landman Corsi Ballaine & Ford, P.C., New York, N.Y. (William G. Ballaine and Janine E.Brown of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Vaughan, J.), entered December 6, 2011, which deniedtheir motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
On December 6, 2009, a vehicle owned and operated by the plaintiff Isaac Winner(hereinafter Isaac), and an Access-A-Ride van operated by the defendant William P. Volpe, Jr.,were involved in an accident on Avenue W, at its intersection with Batchelder Street, inBrooklyn. Isaac had been traveling eastbound on Avenue W when Volpe, traveling westbound onAvenue W, attempted to turn left onto Batchelder Street. The traffic light controlling theintersection was green for both drivers.
Isaac, and his wife, suing derivatively, commenced this action to recover damages forpersonal injuries. The plaintiffs then moved for summary judgment on the issue of liability. TheSupreme Court denied the motion and the plaintiffs appeal. We affirm.
"There can be more than one proximate cause [of an accident] and, thus, the proponent of asummary judgment motion has the burden of establishing freedom from comparative negligenceas a matter of law" (Pollack vMargolin, 84 AD3d 1341, 1342 [2011]; see Gardella v Esposito Foods, Inc., 80 AD3d 660, 660 [2011]).While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that theopposing driver will obey the traffic laws requiring him or her to yield (see Ahern v Lanaia, 85 AD3d 696,696 [2011]; Mohammad v Ning, 72AD3d 913, 914 [2010]; Loch vGarber, 69 AD3d 814, 816 [2010]), the operator traveling with the right-of-way still hasan obligation to keep a proper lookout and see what can be seen through the reasonable use of hisor her senses to avoid colliding with other vehicles (see Allen v Echols, 88 AD3d 926, 926 [2011]; Pollack vMargolin, 84 AD3d at 1342; Bonillav Calabria, 80 AD3d 720, 720 [2011]; Todd v Godek, 71 AD3d 872, 872 [2010]).
The Supreme Court properly denied the plaintiffs' motion for summary judgment on [*2]the issue of liability since they failed to establish their prima facieentitlement to judgment as a matter of law. In support of their motion, the plaintiffs submitted atranscript of the testimony given by Isaac at a hearing held pursuant to General Municipal Law§ 50-h, his affirmation of merit, the police accident report and the pleadings. At theGeneral Municipal Law § 50-h hearing, Isaac testified that, when he saw the defendants'van, it was already in the intersection. He explained, during his testimony and in his affirmationof merit, that the front of the defendants' van came into contact with the left front side of hisvehicle. Consequently, the plaintiffs' submissions did not establish, as a matter of law, that Isaacwas free from comparative fault (seeBoodlall v Herrera, 90 AD3d 590, 590 [2011]; Gardella v Esposito Foods, Inc.,80 AD3d at 660; Demant vRochevet, 43 AD3d 981, 981 [2007]; Burghardt v Cmaylo, 40 AD3d 568, 569 [2007]; Scibelli v Hopchick, 27 AD3d720, 720 [2006]).
Since the plaintiffs did not sustain their prima facie burden, we need not review thesufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
The plaintiffs' remaining contention need not be addressed in light of our determination.Rivera, J.P., Hall, Lott and Austin, JJ., concur.