| Shui-Kwan Lui v Serrone |
| 2013 NY Slip Op 00730 [103 AD3d 620] |
| February 6, 2013 |
| Appellate Division, Second Department |
| Shui-Kwan Lui, Respondent, v Robert L. Serroneet al., Appellants. |
—[*1] Caesar & Napoli, New York, N.Y. (Robert Stein of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the defendants appealfrom an order of the Supreme Court, Queens County (Pineda-Kirwan, J.), entered July25, 2011, which granted the plaintiff's motion for summary judgment on the issue ofliability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is denied.
A driver is bound to see what is there to be seen through the proper use of his or hersenses (see Matamoro v City ofNew York, 94 AD3d 722 [2012]; Wilson v Rosedom, 82 AD3d 970 [2011]; Topalis v Zwolski, 76 AD3d524, 525 [2010]; Gonzalez v County of Suffolk, 277 AD2d 350 [2000]), andis negligent for the failure to do so (see Todd v Godek, 71 AD3d 872 [2010]). A driver alsohas a duty to exercise reasonable care under the circumstances to avoid an accident(see Filippazzo v Santiago, 277 AD2d 419, 420 [2000]; Johnson vPhillips, 261 AD2d 269, 271 [1999]).
Although a violation of the Vehicle and Traffic Law constitutes negligence as amatter of law (see Vainer vDiSalvo, 79 AD3d 1023 [2010]; Botero v Erraez, 289 AD2d 274[2001]; Ferrara v Castro, 283 AD2d 392 [2001]; Packer v Mirasola, 256AD2d 394 [1998]), " '[t]here can be more than one proximate cause of an accident' " (Lopez v Reyes-Flores, 52AD3d 785, 786 [2008], quoting Cox v Nunez, 23 AD3d 427, 427 [2005]; see Allen v Echols, 88 AD3d926, 927 [2011]). Consequently, "the proponent of a summary judgment motion hasthe burden of establishing freedom from comparative negligence as a matter of law" (Pollack v Margolin, 84 AD3d1341, 1342 [2011]; seeGardella v Esposito Foods, Inc., 80 AD3d 660, 660 [2011]), bearing in mindthat "the issue of comparative fault is generally a question for the trier of fact" (Allenv Echols, 88 AD3d at 927).
The defendants correctly contend on appeal that, on the record presented, theplaintiff failed to establish, prima facie, that her injured son (hereinafter the infant) wasnot comparatively at fault in the happening of the accident. The deposition testimony ofthe defendant Robert L. Serrone established that Serrone was negligent as a matter oflaw, as he violated Vehicle and Traffic Law § 1146 (a). In this respect, Serroneadmitted to not seeing the infant, who was riding a bicycle [*2]as Serrone was turning right at the subject intersection, andadmitted to striking the infant in the course of making that turn. Thus, Serrone failed tosee what was clearly there to be seen as he made his right turn at the intersection.However, the plaintiff, as the proponent of the summary judgment motion, failed toestablish the infant's freedom from comparative fault. The infant himself admitted at hisdeposition that, while he was stopped on his bicycle, at least partially in the street at thecorner of the intersection, he observed the truck being driven by Serrone as it was turningslowly towards him, and made no attempt to move out of the way. Therefore, histestimony presented a triable issue of fact as to whether he was comparatively at fault inthe happening of the accident (see Thoma v Ronai, 82 NY2d 736 [1993];Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Myles v Blain, 81AD3d 798 [2011]), and this failure to establish freedom from comparative faultrequired the denial of the plaintiff's motion for summary judgment, regardless of thesufficiency of the defendants' opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Skelos, J.P., Dickerson, Chambers andHinds-Radix, JJ., concur.