| Graeber-Nagel v Naranjan |
| 2012 NY Slip Op 09026 [101 AD3d 1078] |
| December 26, 2012 |
| Appellate Division, Second Department |
| Loretta Graeber-Nagel, Appellant, v Indranie Naranjan,Respondent. |
—[*1] Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Agate, J.), entered October 21, 2011, which grantedthe defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
On May 20, 2008, a vehicle owned and operated by the plaintiff collided with a vehicleowned and operated by the defendant at the intersection of 109th Street and 107th Avenue inQueens. As a result of the collision, the plaintiff commenced this action, inter alia, to recoverdamages for personal injuries she allegedly sustained in the accident. The defendant moved forsummary judgment dismissing the complaint, alleging that the sole proximate cause of theaccident was the plaintiff's failure to yield the right-of-way in violation of Vehicle and TrafficLaw § 1142 (a). The Supreme Court granted the motion, and the plaintiff appeals.
"There can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d 427, 427[2005]; see Kim v Acosta, 72 AD3d648 [2010]). A driver can be negligent in failing to see that which, under the circumstances,he or she should have seen (see Duran vSimon, 83 AD3d 654 [2011]). A driver who has the right-of-way may still be foundpartially at fault for an accident if he or she fails to use reasonable care to avoid a collision withanother vehicle in the intersection (seeVirzi v Fraser, 51 AD3d 784 [2008]; Rotondi v Rao, 49 AD3d 520 [2008]; Mateiasevici v Daccordo, 34 AD3d651, 652 [2006]). Indeed, a movant seeking summary judgment is required to make a primafacie showing that he or she is free from comparative fault (see Mackenzie v City of New York, 81 AD3d 699 [2011]; Bonilla v Gutierrez, 81 AD3d 581[2011]; Roman v A1 Limousine,Inc., 76 AD3d 552 [2010]). Here, the transcript of the defendant's deposition testimony,which was submitted in support of her motion, reflected two differing accounts by the defendantas to how the collision occurred and what actions she took with respect to her vehicle in order toavoid the collision. Therefore, the defendant failed to establish her prima facie entitlement tojudgment as a matter of law on the issue of comparative fault (see Vinueza v Tarar, 100 AD3d742 [2012]; Nevarez v S.R.M. Mgt.Corp., 58 AD3d 295, 298 [2008]; Borukhow v Cuff, 48 AD3d 726 [2008]; [*2]Cox v Nunez, 23 AD3d at 427; Romano v 202 Corp.,305 AD2d 576 [2003]).
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint, regardless of the sufficiency of the plaintiff's oppositionpapers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Goodyear v Putnam/Northern WestchesterBd. of Coop. Educ. Servs., 86 AD3d 551, 552 [2011]; Post v County of Suffolk, 80 AD3d682 [2011]). Rivera, J.P., Dillon, Roman and Cohen, JJ., concur.