| Jones v Vialva-Duke |
| 2013 NY Slip Op 03816 [106 AD3d 1052] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Lee Jones, Appellant, v Tanya Vialva-Duke,Respondent. |
—[*1] Richard T. Lau, Jericho, N.Y. (Nancy S. Goodman of counsel), forrespondent.
In an action to recover damages for personal injuries and injury to property, theplaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.),dated November 9, 2011, which granted the defendant's motion for summary judgmentdismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is denied.
On July 8, 2008, a vehicle owned and operated by the plaintiff collided with avehicle owned and operated by the defendant at the intersection of Pitkin Avenue andCleveland Street in Brooklyn. As a result of the collision, the plaintiff commenced thisaction, inter alia, to recover damages for personal injuries he allegedly sustained in theaccident. The defendant moved for summary judgment dismissing the complaint,alleging that the sole proximate cause of the accident was the plaintiff's failure to yieldthe right-of-way in violation of Vehicle and Traffic Law § 1142 (a). The SupremeCourt granted the motion.
"There can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d427, 427 [2005]; see Kim vAcosta, 72 AD3d 648 [2010]). A driver who has the right-of-way may still befound partially at fault for an accident if he or she fails to use reasonable care to avoid acollision with another vehicle in an intersection (see Virzi v Fraser, 51 AD3d 784 [2008]; Rotondi v Rao, 49 AD3d520 [2008]; Mateiasevici vDaccordo, 34 AD3d 651, 652 [2006]). Indeed, a movant seeking summaryjudgment is required to make a prima facie showing that he or she is free fromcomparative fault (seeMackenzie v City of New York, 81 AD3d 699 [2011]; Bonilla v Gutierrez, 81 AD3d581 [2011]; Roman v A1Limousine, Inc., 76 AD3d 552 [2010]). Here, the transcripts of the depositiontestimony of the plaintiff and the defendant, which were submitted in support of thedefendant's motion, raised a triable issue of fact as to what actions the defendant took inorder to avoid the collision. Therefore, the defendant failed to establish her prima facieentitlement to judgment as a matter of law (see Vinueza v Tarar, 100 AD3d 742 [2012]; Nevarez v S.R.M. Mgt. Corp.,58 AD3d 295 [2008]; Borukhow v Cuff, 48 AD3d 726 [2008]; Cox vNunez, 23 AD3d at 427).
Accordingly, the Supreme Court should have denied the defendant's motion for [*2]summary judgment dismissing the complaint, regardless ofthe sufficiency of the plaintiff's opposition papers (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]; Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ.Servs., 86 AD3d 551, 552 [2011]; Post v County of Suffolk, 80 AD3d 682 [2011]).Angiolillo, J.P., Hall, Roman and Hinds-Radix, JJ., concur.