| Lu Yuan Yang v Howsal Cab Corp. |
| 2013 NY Slip Op 03819 [106 AD3d 1055] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Lu Yuan Yang, Respondent, v Howsal Cab Corp.et al., Appellants. |
—[*1] James Lo, Esq., P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), forrespondent.
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(Lewis, J.), dated December 14, 2012, as granted the plaintiff's motion for summaryjudgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, while on his bicycle, was stopped in the middle of the northboundbicycle lane on Central Park West, at its intersection with West 95th Street, when he wasstruck by a motor vehicle operated by the defendant Eddy S. Suharwono and owned bythe defendant Howsal Cab Corp. The defendants' vehicle had been traveling northbound,in the lane closest to the subject bicycle lane. The plaintiff commenced this action againstthe defendants to recover damages for his personal injuries and, after discovery wascompleted, the plaintiff moved for summary judgment on the issue of liability. TheSupreme Court granted the plaintiff's motion.
To prevail on a motion for summary judgment on the issue of liability, a plaintiff hasthe burden of establishing, prima facie, not only that the defendant was negligent but thatthe plaintiff was free from comparative fault (see Thoma v Ronai, 82 NY2d 736,737 [1993]; Pollack vMargolin, 84 AD3d 1341, 1342 [2011]; Mackenzie v City of New York, 81 AD3d 699, 700 [2011];Klee v Americas Best BottlingCo., Inc., 60 AD3d 911 [2009]), since there can be more than one proximatecause of an accident (see Allenv Echols, 88 AD3d 926, 926 [2011]; Bonilla v Calabria, 80 AD3d 720, 720 [2011]; Kim v Acosta, 72 AD3d648, 648 [2010]; Lopez vReyes-Flores, 52 AD3d 785, 786 [2008]). Where the movant has established hisor her entitlement to judgment as a matter of law, the opposing party may defeat themotion for summary judgment by submitting sufficient evidence to raise a triable issue offact as to the moving party's comparative fault (see Singh v Singh, 81 AD3d 807 [2011]; Martin v Ali, 78 AD3d1135 [2010]; Thompson vSchmitt, 74 AD3d 789 [2010]; Ishak v Guzman, 12 AD3d 409 [2004]).
Further, a driver is bound to see what is there to be seen through the proper use of hisor her senses and is negligent for failure to do so (see Colpan v Allied Cent.Ambulette, Inc., 97 [*2]AD3d 776, 777 [2012]; Matamoro v City of NewYork, 94 AD3d 722 [2012]; Wilson v Rosedom, 82 AD3d 970, 970 [2011]; Topalis v Zwolski, 76 AD3d524, 525 [2010]; Todd vGodek, 71 AD3d 872 [2010]). A driver also has a duty to exercise reasonablecare under the circumstances to avoid an accident (see Shui-Kwan Lui v Serrone, 103 AD3d 620 [2013]; Byrne v Calogero, 96 AD3d704, 705 [2012]; Zweeres vMateri, 94 AD3d 1111, 1111 [2012]; Filippazzo v Santiago, 277 AD2d419, 420 [2000]).
Here, the plaintiff established his entitlement to judgment as a matter of law on theissue of liability by submitting a transcript of his deposition testimony and that of thedefendant driver Suharwono. The testimony established that the plaintiff was stopped inthe middle of the bicycle lane when he was struck by the defendants' vehicle, that he didnot move into the car lane from the bicycle lane, that Suharwono did not see the plaintiffat any point before the accident, that Suharwono did not know how the accidentoccurred, and that the broken right side-view mirror of the vehicle driven by Suharwonowas found in between the bicycle lane and the lane for parking on Central Park West,which was to the right of the bicycle lane. As a result, the plaintiff established, as amatter of law, that Suharwono was negligent, that Suharwono's negligence proximatelycaused the accident, and that the plaintiff was free from comparative fault (see e.g.Klee v Americas Best Bottling Co., Inc., 60 AD3d at 911). In opposition, thedefendants failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the issue of liability. Dillon, J.P., Angiolillo, Dickerson and Chambers, JJ.,concur.