| Calderon-Scotti v Rosenstein |
| 2014 NY Slip Op 05294 [119 AD3d 722] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Christine Calderon-Scotti,Appellant, v Howard D. Rosenstein et al.,Respondents. |
Lozner & Mastropietro, Brooklyn, N.Y. (Dean G. Delianites and ElizabethMark Meyerson of counsel), for appellant.
Morrison Mahoney LLP, New York, N.Y. (Jamie K. McAleavey of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (F. Rivera, J.), dated July 19, 2013, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is denied.
The subject accident occurred when the plaintiff's vehicle, which was travelingeastbound on Cropsey Avenue in Brooklyn, made a left turn at 23rd Avenue and collidedwith a vehicle operated by the defendant Jason S. Rosenstein (hereinafter Jason) andowned by the defendant Howard D. Rosenstein. Jason had been traveling westbound onCropsey Avenue in the right lane of the two lanes for westbound traffic. The front ofJason's vehicle struck the passenger side of the plaintiff's vehicle.
The defendants moved for summary judgment dismissing the complaint. TheSupreme Court granted the motion, finding that the plaintiff violated Vehicle and TrafficLaw § 1141 and that such violation was the sole proximate cause of theaccident.
"There can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d427, 427 [2005]; seeRodriguez v Klein, 116 AD3d 939 [2014]; Incle v Byrne-Lowell, 115 AD3d 709, 709 [2014]; Adobea v Junel, 114 AD3d818, 819 [2014]). Therefore, a proponent of a summary judgment motion has theburden of establishing his or her freedom from comparative negligence as a matter of law(see Lanigan v Timmes, 111AD3d 797, 798 [2013]; Shui-Kwan Lui v Serrone, 103 AD3d 620, 621 [2013]; Gause v Martinez, 91 AD3d595, 596 [2012]; Pollack vMargolin, 84 AD3d 1341, 1342 [2011]).
The operator of a vehicle with the right of way is entitled to assume that the opposingdriver will obey the traffic laws requiring him or her to yield (see Ahern v Lanaia, 85 AD3d696, 696 [2011]; Mohammad v Ning, 72 AD3d 913, 914 [2010]; Loch v Garber, 69 AD3d814, 816 [2010]; Yelder vWalters, 64 AD3d 762, 764 [2009]). However, every operator of a motorvehicle has an obligation to keep a proper lookout and to see what can be seen throughthe reasonable use of his or her senses to avoid colliding [*2]with other vehicles, and is negligent for failure to do so (see Lu Yuan Yang v Howsal CabCorp., 106 AD3d 1055, 1056 [2013]).
Here, in support of their motion for summary judgment, the defendants submitted atranscript of the deposition testimony of both the plaintiff and Jason, who presentedconflicting testimony as to the facts surrounding the accident. Moreover, according to thetestimony of both parties, the plaintiff had already passed the median and the left lane forwestbound traffic on Cropsey Avenue when the impact occurred within the right lane forwestbound traffic. The submission of this evidence by the defendants failed to eliminateall triable issues of fact with respect to whether the plaintiff was already within theintersection as Jason approached and whether he should have seen the plaintiff's vehicleas it made the left turn in time to take evasive action in response. Thus, the defendantsdid not establish, prima facie, that the plaintiff violated Vehicle and Traffic Law§ 1141 or, if so, whether such violation was the sole proximate cause of theaccident (see Lee v Hossain,111 AD3d 799, 799 [2013]; Koeppel-Vulpis v Lucente, 110 AD3d 851, 851 [2013];Gause v Martinez, 91 AD3d at 597; Todd v Godek, 71 AD3d 872, 873 [2010]). Since thedefendants did not demonstrate their prima facie entitlement to judgment as a matter oflaw, we need not consider the sufficiency of the papers submitted in opposition (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Accordingly, the Supreme Court improperly granted the defendants' motion forsummary judgment dismissing the complaint.
In light of our determination, we need not address the plaintiff's remainingcontentions. Dillon, J.P., Lott, Austin and Barros, JJ., concur.