| Espiritu v Shuttle Express Coach, Inc. |
| 2014 NY Slip Op 01707 [115 AD3d 787] |
| March 19, 2014 |
| Appellate Division, Second Department |
| Larry Espiritu, Appellant-Respondent, v ShuttleExpress Coach, Inc., et al., Defendants/Third-Party Plaintiffs-Respondents-Appellants.85 Adams Street, LLC, Third-Party Defendant-Respondent. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler ofcounsel), for defendants/third-party plaintiffs-respondents-appellants. Baxter, Smith & Shapiro, P.C., Hicksville, N.Y. (Anne Marie Garcia of counsel), forthird-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Jacobson, J.), dated March 23, 2012, whichgranted the motion of the defendants/third-party plaintiffs for summary judgmentdismissing the complaint and the cross motion of the third-party defendant for summaryjudgment dismissing the third-party complaint, and the defendants/third-party plaintiffscross-appeal, as limited by their brief, from so much of the same order as granted thecross motion of the third-party defendant for summary judgment dismissing thethird-party complaint.
Ordered that the plaintiff's appeal from so much of the order as granted thethird-party defendant's cross motion for summary judgment dismissing the third-partycomplaint is dismissed, as the plaintiff is not aggrieved by that portion of the order(see CPLR 5511; Mixonv TBV, Inc., 76 AD3d 144 [2010]); and it is further,
Ordered that the order is reversed, on the law, the defendants/third-party plaintiffs'motion for summary judgment is denied, and the cross motion of the third-partydefendant for summary judgment is denied; and it is further,
Ordered that one bill of costs is awarded to the plaintiff payable by thedefendants/third-party plaintiffs, and one bill of costs is awarded to thedefendants/third-party plaintiffs payable by the third-party defendants.
The plaintiff was riding his bicycle south on Adams Street in Brooklyn when he wasstruck on the left side by a private shuttle bus owned by the defendant Shuttle ExpressCoach, Inc., and operated by the defendant Michael A. Wright. The shuttle bus wastraveling west on York Street [*2]at the time of thecollision. It is undisputed that at the subject intersection, York Street was a one-waystreet running in a westerly direction, Adams Street was a one-way street running in anortherly direction, and the only traffic control device was a stop sign for north-boundtraffic on Adams Street. It is also undisputed that the third-party defendant, 85 AdamsStreet, LLC, had erected a fence around construction on the northeast corner of theintersection, and the fence extended onto both York Street and Adams Street. At theirrespective depositions, both the plaintiff and Wright testified that the fence occupied asubstantial portion of York Street and prevented each of them from being able to see theintersection clearly before entering it. The Supreme Court granted the defendants' motionfor summary judgment dismissing the complaint and the third-party defendant's motionfor summary judgment dismissing the third-party complaint on the ground that theplaintiff's negligence was the sole proximate cause of the accident.
Although the plaintiff concedes that he was negligent as a matter of law by travelingthe wrong way on Adams Street in violation of Vehicle and Traffic Law § 1127 (a)(see Vehicle and Traffic Law § 1231 [a person riding a bicycle is grantedall of the rights and is subject to all of the duties applicable to the driver of a vehicle]),there can be more than one proximate cause of an accident, and the proponent of amotion for summary judgment has the burden of establishing freedom from comparativefault as a matter of law (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Antaki v Mateo, 100 AD3d579, 580 [2012]; Colpan vAllied Cent. Ambulette, Inc., 97 AD3d 776, 777 [2012]; Simmons v Canady, 95 AD3d1201, 1202 [2012]; Pollackv Margolin, 84 AD3d 1341, 1342 [2011]; Kim v Acosta, 72 AD3d 648, 648-649 [2010]).
Here, the defendants failed to make a prima facie showing as a matter of law thatWright was free from any comparative fault in the happening of the accident. There aretriable issues of fact as to whether Wright failed to see what was there to be seen throughthe proper use of his senses (seeBrandt v Zahner, 110 AD3d 752 [2013]; Colpan v Allied Cent. Ambulette,Inc., 97 AD3d at 777; Topalis v Zwolski, 76 AD3d 524, 525 [2010]; Tapia v Royal Tours Serv.,Inc., 67 AD3d 894, 896 [2009]), failed to exercise due care to avoid thecollision (see Vehicle and Traffic Law § 1146 [a]; Soibov v Palmer, 102 AD3d951, 952 [2013]; Matamorov City of New York, 94 AD3d 722 [2012]; Bonilla v Calabria, 80 AD3d 720 [2011]; Todd v Godek, 71 AD3d872 [2010]; Tapia v Royal Tours Serv., Inc., 67 AD3d at 895), or wastraveling at a reasonable and prudent speed as he approached the intersection in light ofthe conditions then present (see Vehicle and Traffic Law § 1180).Accordingly, the Supreme Court should have denied the defendants' motion, regardlessof the sufficiency of the plaintiff's opposing papers.
Furthermore, because the third-party defendant submitted no evidence showing thatit was free from any comparative fault in the placement of the construction fence, itsmotion also should have been denied. Dillon, J.P., Hall, Austin and Sgroi, JJ., concur.