| Sirlin v Schreib |
| 2014 NY Slip Op 03504 [117 AD3d 819] |
| May 14, 2014 |
| Appellate Division, Second Department |
[*1]
| Mark R. Sirlin, Respondent, v Robert J. SchreibIII et al., Appellants. |
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Keri A.Wehrheim of counsel), for appellants.
Michael G. LoRusso, P.C., Syosset, N.Y. (Shayne, Dachs, Sauer & Dachs, LLP[Jonathan A. Dachs], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Suffolk County (Martin, J.), dated May 30, 2013, whichgranted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff, who was riding his bicycle westbound in a designated bicycle lane onRoute 25A in Shoreham, was involved in an accident with a vehicle operated by thedefendant Robert J. Schreib III (hereinafter Robert) and owned by the defendant LynnM. Schreib. The accident occurred at an entrance to a parking lot for a shopping centerwhen Robert, who had been traveling eastbound on Route 25A, made a left turn into theparking lot. The plaintiff moved for summary judgment on the issue of liability. TheSupreme Court granted the motion.
"There can be more than one proximate cause [of an accident] and, thus, theproponent of a summary judgment motion has the burden of establishing freedom fromcomparative negligence as a matter of law" (Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; see Shui-Kwan Lui v Serrone,103 AD3d 620, 620 [2013]; Simmons v Canady, 95 AD3d 1201, 1202 [2012]).Consequently, "[t]o prevail on a motion for summary judgment on the issue of liability inan action alleging negligence, a plaintiff has the burden of establishing, prima facie, notonly that the defendant was negligent, but that the plaintiff was free from comparativefault" (Ramos v Bartis, 112AD3d 804, 804 [2013]; see Thoma v Ronai, 82 NY2d 736, 737 [1993];Pollack v Margolin, 84 AD3d at 1342).
Here, the plaintiff established his prima facie entitlement to judgment as a matter oflaw by submitting evidence that Robert, who testified at his deposition that he did not seethe plaintiff until seconds before the impact, was negligent in violating Vehicle andTraffic Law §§ 1141 and 1163 (a) by making a left turn into the pathof oncoming traffic without yielding the right of way to the plaintiff when the turn couldnot be made with reasonable safety (see Fenster v Ellis, 71 AD3d 1079, 1081 [2010]; Torro v Schiller, 8 AD3d364, 365 [2004]; Maloneyv Niewender, 27 AD3d 426 [2006]; Burns v [*2]Mastroianni, 173 AD2d 754, 755 [1991]). The plaintiffalso demonstrated that Robert's negligence was the sole proximate cause of the accidentand that he was not comparatively at fault in the happening of the accident through hisdeposition testimony that he saw Robert's vehicle stopped and waiting to make the turn,slowed down in response, stood up on his pedals to make eye contact with Robert toensure that Robert was aware of his presence, and continued riding when he believed thatRobert had made eye contact with him. Further, the plaintiff testified that, upon seeingRobert commence making the left turn in front of him, he immediately attempted to applyhis brakes and maneuver around Robert's vehicle, but there was an insufficient amount oftime to successfully do so (seeYelder v Walters, 64 AD3d 762, 764 [2009]; see also Jaramillo v Torres, 60AD3d 734, 734-735 [2009]).
In opposition, the defendants failed to raise a triable issue of fact (see Torro vSchiller, 8 AD3d at 365).
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the issue of liability. Rivera, J.P., Chambers, Austin and Duffy, JJ.,concur.