| Simmons v Canady |
| 2012 NY Slip Op 03997 [95 AD3d 1201] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Margaret Simmons, Plaintiff, v Reginald F. Canady, Jr.,Respondent, and Bryan A. Hall et al., Appellants. |
—[*1] Mendolia & Stenz, Westbury, N.Y. (Jonathan Ivezaj of counsel), for respondent. Dinkes & Schwitzer, P.C., New York, N.Y. (Naomi J. Skura of counsel), forplaintiff.
In an action to recover damages for personal injuries, the defendants Bryan A. Hall andKenneth P. Conroy appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (McDonald, J.), dated May 18, 2011, as granted the cross motion of thedefendant Reginald F. Canady, Jr., for summary judgment dismissing the complaint insofar asasserted against him and the cross claim asserted against him.
Ordered that the appeal from so much of the order as granted that branch of the cross motionof the defendant Reginald F. Canady, Jr., which was for summary judgment dismissing thecomplaint insofar as asserted against him is dismissed, as the appellants are not aggrieved by thatpart of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144 [2010]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, with costs payable by thedefendant Reginald F. Canady, Jr., to the defendants Bryan A. Hall and Kenneth P. Conroy, andthat branch of the cross motion of the defendant Reginald F. Canady, Jr., which was for summaryjudgment dismissing the cross claim asserted against him is denied.
On October 12, 2009, the plaintiff was the front seat passenger in a vehicle driven by thedefendant Reginald F. Canady, Jr., traveling westbound on Rockaway Boulevard in Queens. Thedefendant Bryan A. Hall was driving a tractor-trailer owned by the defendant Kenneth P. Conroy,traveling eastbound on Rockaway Boulevard. At the intersection of Rockaway Boulevard andFarmers Boulevard, a posted traffic sign prohibits eastbound traffic from turning left to gonorthbound on Farmers Boulevard. It is undisputed that Hall made an unlawful left turn fromRockaway Boulevard onto Farmers Boulevard. The front of Canady's vehicle came into contactwith the right rear of Hall's tractor-trailer, causing injuries to the plaintiff.
The plaintiff commenced this action to recover damages for personal injuries, alleging thatall three defendants were negligent in the happening of the accident. In their answer, Hall and[*2]Conroy asserted a cross claim against Canady. After issuewas joined, but prior to depositions, the plaintiff moved for summary judgment on the issue ofliability, in effect, against Hall and Conroy only. Canady cross-moved for summary judgmentdismissing the complaint insofar as asserted against him and the cross claim asserted against him.The plaintiff did not oppose Canady's cross motion, but Hall and Conroy did. The Supreme Courtgranted both the motion and the cross motion, determining that Hall and Conroy were solelyliable. Hall and Conroy appeal from so much of the order as granted the cross motion, contendingthat triable issues exist as to Canady's comparative fault. We reverse the order insofar asreviewed.
The Supreme Court correctly determined that Hall was negligent as a matter of law basedupon his violation of Vehicle and Traffic Law §§ 1141, 1110 (a) and § 1160(d) (see Vainer v DiSalvo, 79 AD3d1023, 1024 [2010]; Blangiardo vHirsch, 29 AD3d 841, 842 [2006]). Canady was entitled to anticipate that Hall wouldobey the applicable traffic law (see Vainer v DiSalvo, 79 AD3d at 1024; Thompson v Schmitt, 74 AD3d789, 789-790 [2010]). However, a driver who lawfully enters an intersection "must exercisereasonable care and could still be found partially at fault . . . if he or she fails to usereasonable care to avoid a collision with another vehicle in the intersection" (Cox v Weil, 66 AD3d 634,634-635 [2009]; see Borukhow vCuff, 48 AD3d 726 [2008]), and may be found "negligent if he or she fail[s] to see thatwhich, through the proper use of senses, should have been seen" (Wilson v Rosedom, 82 AD3d 970,970 [2011]). "There can be more than one proximate cause 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 Gause v Martinez, 91 AD3d 595, 596 [2012]; Lopez v Reyes-Flores, 52 AD3d785, 786 [2008]; Cox v Nunez,23 AD3d 427 [2005]).
Here, in support of his cross motion, Canady failed to submit evidence establishing that hewas free from comparative fault. Instead, he relied exclusively on the papers submitted by theplaintiff in support of her motion for summary judgment on the issue of liability, in effect,against Hall and Conroy, which included her affidavit stating merely that Canady's vehicle "wasgoing straight on Rockaway Boulevard" when "it was suddenly and unexpectedly struck" in frontby Hall's tractor-trailer. The plaintiff's affidavit contained no further information with respect tothe manner in which Canady was driving or the manner in which he reacted to the tractor-trailer.Accordingly, Canady failed to satisfy his prima facie burden of eliminating a triable issue as tohis comparative fault, and that branch of his cross motion which was for summary judgmentdismissing the cross claim asserted against him should have been denied regardless of thesufficiency of the papers in opposition (see Gause v Martinez, 91 AD3d at 597; Cali v Mustafa, 68 AD3d 700[2009]; Demant v Rochevet, 43AD3d 981 [2007]). Angiolillo, J.P., Dickerson, Hall and Cohen, JJ., concur. [Prior CaseHistory: 31 Misc 3d 1237(A), 2011 NY Slip Op 51020(U).]