| Sperling v Akesson |
| 2013 NY Slip Op 01820 [104 AD3d 840] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Arthur Sperling, Respondent, v Adam Akesson etal., Appellants. |
—[*1] Sacco & Fillas, LLP, Astoria, N.Y. (Andrew Wiese and Albert Matuza of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Bayne, J.), dated May 4, 2012, as granted that branch of the plaintiff's motion which wasfor summary judgment on the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the plaintiff's motion which was for summary judgment on the issue ofliability is denied.
The plaintiff was driving his vehicle southbound on Ocean Avenue in Brooklynwhen he was involved in an accident with a vehicle driven by the defendant AdamAkesson, which was traveling in the opposite direction on the same street. After havingstopped for a red traffic signal on Ocean Avenue, the plaintiff's vehicle turned left ontoAvenue Z when the light turned green, but had to come to an abrupt stop to avoidstriking a pedestrian crossing Avenue Z. When the plaintiff's vehicle stopped, the rearportion of his vehicle blocked the lane in which Akesson was driving. The front ofAkesson's vehicle then came into contact with the rear passenger side of the plaintiff'svehicle.
The plaintiff moved, inter alia, for summary judgment on the issue of liability, andthe Supreme Court granted that branch of the motion.
Contrary to the Supreme Court's determination, the plaintiff failed to submitevidence sufficient to establish his prima facie entitlement to judgment as a matter of lawon the issue of liability (see Vehicle and Traffic Law § 1141; Simmons v Canady, 95 AD3d1201, 1202 [2012]). The plaintiff had the burden of establishing freedom fromcomparative fault as a matter of law (see Pollack v Margolin, 84 AD3d 1341, 1342 [2011]) sincethere can be more than one proximate cause of an accident (see Allen v Echols, 88 AD3d926, 927 [2011]; Bonilla vCalabria, 80 AD3d 720, 720 [2011]; Kim v Acosta, 72 AD3d 648, 648-649 [2010]; Lopez v Reyes-Flores, 52AD3d 785, 786 [2008]). In support of his motion, the plaintiff submitted, inter alia,his and Akesson's deposition transcripts, which contained [*2]conflicting testimony as to the facts surrounding theaccident, including whether the plaintiff proceeded into the intersection when Akesson'svehicle was so close as to constitute an immediate hazard. Since a driver is negligent ifhe or she failed to see that which, through the proper use of senses, should have beenseen (see Katanov v County ofNassau, 91 AD3d 723, 725 [2012]; Wilson v Rosedom, 82 AD3d 970 [2011]; Kucar v Town of Huntington,81 AD3d 784, 785 [2011]), the plaintiff's evidentiary submissions were insufficientto eliminate all triable issues of fact surrounding the accident and whether either or bothdrivers were negligent (see Allen v Echols, 88 AD3d at 927).
Further, contrary to the plaintiff's contention, this accident, in which the plaintiff'svehicle was struck on the rear passenger side by the front of the defendants' vehicle, didnot involve a rear-end collision (cf. Vehicle and Traffic Law § 1129 [a]).
Accordingly, the Supreme Court should have denied that branch of the plaintiff'smotion which was for summary judgment on the issue of liability, regardless of thesufficiency of the defendants' opposition papers (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). Mastro, J.P., Austin, Cohen and Miller, JJ., concur.