| Brandt v Zahner |
| 2013 NY Slip Op 06537 [110 AD3d 752] |
| October 9, 2013 |
| Appellate Division, Second Department |
| James Brandt, Appellant, v Reli Zahner,Respondent. |
—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucciof counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Sher, J.), entered April 17, 2012, whichgranted the defendant's motion for summary judgment dismissing 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.
The plaintiff, a pedestrian, allegedly was injured when, after crossing the westboundlane of I.U. Willets Road in Nassau County, he was struck by a vehicle driven by thedefendant in the eastbound lane of that road. The plaintiff thereafter commenced thisaction to recover damages for personal injuries. The defendant moved for summaryjudgment dismissing the complaint, and the Supreme Court granted the motion.
Contrary to the Supreme Court's determination, the defendant failed to demonstrateher prima facie entitlement to judgment as a matter of law. "A driver is bound to see whatis there to be seen with the proper use of his [or her] senses" (Topalis v Zwolski, 76 AD3d524, 525 [2010]; seeSteiner v Dincesen, 95 AD3d 877 [2012]; Zuleta v Quijada, 94 AD3d 876 [2012]; Hammond v Diaz, 82 AD3d839, 840 [2011]). Further, there can be more than one proximate cause of anaccident (see McIntosh vVillage of Freeport, 95 AD3d 965 [2012]; Gardner v Smith, 63 AD3d 783 [2009]), and the issue ofcomparative negligence is generally a question for the jury to decide (see Jahangir v Logan Bus Co.,Inc., 89 AD3d 1064 [2011]).
Here, the defendant testified at her deposition that she did not see the plaintiff priorto "contact," and that she had her foot on the accelerator pedal at the moment of contact.The defendant did not explain her failure to see the plaintiff, who had first traveledacross the westbound lane of traffic before entering her eastbound lane of traffic, beforeher vehicle hit him. Accordingly, the defendant failed to demonstrate, prima facie, thatshe kept a proper lookout and that her alleged negligence did not contribute to thehappening of the accident (see Topalis v Zwolski, 76 AD3d at 525; Katanov v County of Nassau,91 AD3d 723, 725 [2012]; see also Steiner v Dincesen, 95 AD3d at 878;Hammond v Diaz, 82 AD3d at 840).[*2]
Since the defendant failed to demonstrate herprima facie entitlement to judgment as a matter of law, the Supreme Court should havedenied her motion, regardless of the sufficiency of the plaintiff's opposition papers(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Skelos, J.P., Balkin,Austin and Sgroi, JJ., concur. [Prior Case History: 2012 NY Slip Op31092(U).]