| Regans v Baratta |
| 2013 NY Slip Op 03468 [106 AD3d 893] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Alicia Regans, Appellant, v Bernardino Baratta,Respondent. |
—[*1] Epstein, Gialleonardo, Frankini & Grammatico, Mineola, N.Y. (Russell M. Plotkinof counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Markey, J.), dated September 12, 2011,which denied her motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries shesustained when a vehicle she was driving collided with a vehicle driven by the defendantat an intersection in Queens. After issue was joined, the plaintiff moved for summaryjudgment on the issue of liability. She submitted, inter alia, an affidavit in which sheattested that her direction of travel was not governed by any traffic control device, thatshe entered the intersection with the right-of-way, and that the defendant caused thecollision by entering the intersection after disregarding a stop sign governing hisdirection of travel. The plaintiff failed to set forth any additional circumstances regardingthe collision, including the manner in which she was operating her own vehicle.
"There can be more than one proximate cause [of an accident] and, thus, theproponent of a summary judgment motion has the burden of establishing freedom fromcomparative negligence as a matter of law" (Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; see Antaki v Mateo, 100 AD3d579 [2012]; Winner v StarCruiser Transp., Inc., 95 AD3d 1109 [2012]). While an operator of a motorvehicle traveling with the right-of-way is entitled to assume that other drivers will obeythe traffic laws requiring them to yield (see Steiner v Dincesen, 95 AD3d 877, 878 [2012];Pollack v Margolin, 84 AD3d at 1342), the operator traveling with theright-of-way still has an obligation to keep a proper lookout and see what can be seenthrough the reasonable use of his or her senses to avoid colliding with other vehicles(see Winner v Star Cruiser Transp., Inc., 95 AD3d at 1109-1110; Bonilla v Calabria, 80 AD3d720 [2011]). The issue of comparative fault is generally a question for the trier offact (see Allen v Echols, 88AD3d 926, 927 [2011]; Wilson v Rosedom, 82 AD3d 970 [2011]).
Here, the plaintiff failed to submit evidence eliminating a triable issue of fact as to[*2]whether she contributed to the happening of theaccident (see Antaki v Mateo, 100 AD3d at 579; Pollack v Margolin, 84AD3d at 1342; Tapia v RoyalTours Serv., Inc., 67 AD3d 894, 895 [2009]). Since the plaintiff failed toestablish her prima facie entitlement to judgment as a matter of law, her motion wasproperly denied regardless of the sufficiency of the defendant's papers in opposition(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Winner v Star Cruiser Transp., Inc., 95 AD3d at 1110; Anastasi v Terio, 84 AD3d992 [2011]). Eng, P.J., Rivera, Angiolillo and Balkin, JJ., concur.