| Francis v J.R. Bros. Corp. |
| 2012 NY Slip Op 06122 [98 AD3d 940] |
| September 12, 2012 |
| Appellate Division, Second Department |
| Nicole Francis, Respondent, v J.R. Brothers Corp. et al.,Appellants. |
—[*1] Ronald W. Ramirez, Forest Hills, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendants appeal froman order of the Supreme Court, Queens County (Grays, J.), dated December 7, 2011, whichgranted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is denied.
Shortly after midnight on June 19, 2010, the plaintiff was driving her 2005 Volvo eastboundon Liberty Avenue in Jamaica, Queens. At the intersection of Liberty Avenue and 168th Street,the plaintiff allegedly came to a complete stop in the left turn lane, awaiting the turn signal light.According to the plaintiff, her vehicle was still completely stationary when it was struck by atractor-trailer, owned by the defendant J.R. Brothers Corp. and operated by the defendantRolando Quinde, which was making a left turn onto 168th Street from the eastbound travel laneadjacent to her.
Approximately one month after joinder of issue, the plaintiff moved for summary judgmenton the issue of liability. In support of her motion, the plaintiff relied upon an affidavit in whichshe briefly recounted her version of the accident, and a certified copy of the police accidentreport, which contained Quinde's admission that he did not see her vehicle prior to the collision.In an affidavit submitted by the defendants in opposition to the motion, Quinde denied that histractor-trailer was completely within the middle travel lane of Liberty Avenue as the plaintiffclaimed, and averred that only a small portion of the tractor-trailer was in the middle travel lanebecause it required wide turns. Quinde also denied ever seeing the plaintiff stopped in the turninglane. Describing the accident, he maintained that he had completed 90% of his turn when heheard an impact to the rear driver's side of his trailer. He additionally asserted that as he wasmaking his turn, he looked into his driver's side mirror and over his shoulder "to make sure noeastbound traffic was coming up from behind [him] on [his] driver side," and claimed that thecause of the accident was the plaintiff's attempt to pass him on his driver's side as he was makinghis left turn. The Supreme Court granted the plaintiff's motion for summary judgment on theissue of liability. The defendants [*2]appeal, and we reverse.
The plaintiff made a prima facie showing of her entitlement to judgment as a matter of lawon the issue of liability by submitting an affidavit in which she averred that she was at a completestop in the left turn lane of Liberty Avenue when her vehicle was struck by the defendants'tractor-trailer as Quinde attempted to make a left turn from the middle travel lane, and thatQuinde did not see her stopped vehicle prior to the collision, in violation of a driver'scommon-law duty to see that which he should have seen through the proper use of his senses (see Steiner v Dincesen, 95 AD3d877 [2012]; Zuleta v Quijada,94 AD3d 876 [2012]; Hammond vDiaz, 82 AD3d 839, 840 [2011]; Barbieri v Vokoun, 72 AD3d 853, 856 [2010]). Contrary to theSupreme Court's determination, however, Quinde's affidavit, which sets forth a completelydifferent account of the accident, raised triable issues of fact as to the manner in which theaccident occurred, and whether the plaintiff may have caused or contributed to it (see Karash v Adetunji, 56 AD3d726, 727 [2008]; see also Delvalle vMercedes Benz USA, LLC, 94 AD3d 942 [2012]; Johnson v Yarussi Constr., Inc., 74 AD3d 1772, 1773 [2010]; Ashif v Won Ok Lee, 57 AD3d700, 701 [2008]). Accordingly, the Supreme Court should have denied the plaintiff's motionfor summary judgment on the issue of liability. Rivera, J.P., Florio, Eng and Roman, JJ., concur.