| Antaki v Mateo |
| 2012 NY Slip Op 07261 [100 AD3d 579] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Richard Antaki, Respondent, v Ramiro Mateo et al.,Appellants, et al., Defendants. (And a Third-Party Action.) |
—[*1] Jonathan I. Edelstein, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for wrongful death, etc., the defendants RamiroMateo and KilKenny Construction Co., Inc., appeal, as limited by their brief, from so much of anorder of the Supreme Court, Nassau County (Brown, J.), dated January 19, 2012, as denied thatbranch of their cross motion which was for summary judgment dismissing the complaint and allcross claims insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
In this case arising out of an automobile accident, the defendants Ramiro Mateo andKilKenny Construction Co., Inc. (hereinafter the appellants), cross-moved, inter alia, forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem. In support of their cross motion, the appellants made a prima facie showing that Mateoentered the intersection where the accident occurred with a green light. Mateo thus had theright-of-way, and was entitled to anticipate that the driver of the vehicle he collided with wouldobey traffic laws which required her to yield (see Vehicle and Traffic Law § 1111[d]; Cox v Weil, 66 AD3d 634,635 [2009]; see also Simmons vCanady, 95 AD3d 1201, 1202 [2012]). However, there can be more than one proximatecause of an accident, and thus the proponent of a summary judgment motion has the burden ofestablishing freedom from comparative fault as a matter of law (see Pollack v Margolin, 84 AD3d1341, 1342 [2011]; Tapia v RoyalTours Serv., Inc., 67 AD3d 894, 896 [2009]; Lopez v Reyes-Flores, 52 AD3d 785, 786 [2008]). Here, in supportof that branch of their cross motion which was for summary judgment, the appellants submittedevidence which included statements by eyewitnesses, verified pursuant to Penal Law §210.45, which were the equivalent of statements made under oath (see People v Sullivan,56 NY2d 378, 384 [1982]; Moore vCounty of Suffolk, 11 AD3d 591, 592 [2004]). The eyewitness statements raised triableissues of fact as to whether Mateo contributed to the happening of the accident by, inter alia,driving at an excessive rate of speed (seeCalcano v Rodriguez, 91 AD3d 468 [2012]; Franzese v Consolidated Dairies, Inc., 83 AD3d 775 [2011]; Bonilla v Gutierrez, 81 AD3d581, 582 [2011]; Sirot vTroiano, 66 AD3d 763, 764 [2009]). Since the appellants' own submissions failed toeliminate all triable issues of fact as to whether Mateo was free from comparative negligence, theSupreme Court properly denied [*2]that branch of their crossmotion which was for summary judgment without considering the plaintiff's papers in opposition(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Pollack vMargolin, 84 AD3d at 1342). Eng, P.J., Florio, Sgroi and Miller, JJ., concur. [Prior CaseHistory: 2012 NY Slip Op 30269(U).]