| Lanigan v Timmes |
| 2013 NY Slip Op 07711 [111 AD3d 797] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Michael Lanigan, an Infant, by His Mother and NaturalGuardian, Dorothy Lanigan, Respondents-Appellants, v William J. Timmes,Appellant-Respondent. |
—[*1] Asta & Associates, P.C., New York, N.Y. (Eliot S. Bickoff of counsel), forrespondents-appellants.
In an action to recover damages for personal injuries, etc., the defendant appeals, aslimited by his brief, from so much of an order of the Supreme Court, Richmond County(Minardo, J.), dated December 1, 2011, as granted the plaintiffs' motion for summaryjudgment on the issue of liability "to the extent that the defendant is liable," and theplaintiffs cross-appeal, as limited by their brief, from so much of the same order as failedto award them summary judgment on the issue of comparative fault.
Ordered that the order is reversed insofar as appealed from, on the law, and affirmedinsofar as cross-appealed from, with costs to the defendant, and the plaintiffs' motion forsummary judgment on the issue of liability is denied.
The plaintiff Michael Lanigan (hereinafter the injured plaintiff) was injured when theright side of the bicycle he was riding came into contact with the front of a vehicle drivenby the defendant William J. Timmes. The plaintiffs moved for summary judgment on theissue of liability arguing, inter alia, that the defendant failed to yield the right of way andthat such negligence was the sole proximate cause of the accident. The Supreme Courtgranted the motion "to the extent that the defendant is liable, but the plaintiff'scomparative negligence, if any, shall be decided by a jury."
In a personal injury action, to prevail on a motion for summary judgment on the issueof liability, a plaintiff has the burden of establishing, prima facie, not only that thedefendant was negligent, but that the plaintiff was free from comparative fault (seeThoma v Ronai, 82 NY2d 736, 737 [1993]; Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; Mackenzie v City of NewYork, 81 AD3d 699, 700 [2011]; Roman v A1 Limousine, Inc., 76 AD3d 552 [2010]; 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]). Thus, the issue of the defendant'sliability, a component of which is the apportionment of fault (see Bryant v State of NewYork, 7 NY3d 732 [2006]), cannot be determined as a matter of law until it isdecided whether any culpable conduct on the plaintiff's part contributed to the happeningof the accident. For this reason, the Supreme Court order granting the plaintiff's motion"to the extent that the defendant is liable," while directing that the "plaintiff'scomparative [*2]negligence, if any, shall be decided by ajury," was internally inconsistent.
Here, the injured plaintiff testified at his examination before trial that at no timebefore the accident happened did he see the defendant's vehicle, that his vision was notobstructed by anything that would have prevented him from seeing the vehicle, that theaccident happened when he was more than halfway through the intersection, and thatimmediately before the accident, he was looking at what was in front of him. On theother hand, the defendant testified that when he came to the subject intersection, hestopped his vehicle at the stop sign, looked both ways, did not observe any vehicular orbicycle traffic, and then proceeded into the intersection.
Accordingly, even assuming that the defendant was negligent for failing tocautiously enter the intersection (see e.g. Grossman v Spector, 48 AD3d 750 [2008]),nevertheless, the deposition testimony raised a triable issue of fact as to whether theinjured plaintiff acted with reasonable care given all the circumstances (see Thoma vRonai, 82 NY2d at 737; LuYuan Yang v Howsal Cab Corp., 106 AD3d 1055 [2013]; Shui-Kwan Lui v Serrone, 103AD3d 620 [2013]; Colpanv Allied Cent. Ambulette, Inc., 97 AD3d 776, 777 [2012]; Albert v Klein, 15 AD3d509 [2005]; see also Palmav Sherman, 55 AD3d 891, 891 [2008]). Therefore, the plaintiffs' motion forsummary judgment on the issue of liability should have been denied in its entirety(see Shui-Kwan Lui v Serrone, 103 AD3d at 620). Balkin, J.P., Leventhal, Lottand Sgroi, JJ., concur.