| Bullock v Calabretta |
| 2014 NY Slip Op 05502 [119 AD3d 884] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Jessica Bullock, Respondent, v Salvatore G.Calabretta et al., Defendants, and Mohammad Hassain et al.,Appellants. |
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Debra A.Adler of counsel), for appellants.
Buckheit & Whelan, P.C., Suffern, N.Y. (Frank A. Whelan of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants MohammadHassain and Summit Cab Corp. appeal from an order of the Supreme Court, KingsCounty (Martin, J.), dated December 7, 2012, which denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff, Jessica Bullock, was a passenger in a vehicle owned and operated bythe defendant Salvatore G. Calabretta, when that vehicle made a left turn into anintersection and collided with a taxi cab operated by the defendant Mohammad Hassainand owned by the defendant Summit Cab Corp., which was traveling in the oppositedirection.
A driver who has the right-of-way is entitled to anticipate that other motorists willobey traffic laws which require them to yield the right-of-way (see Vehicle andTraffic Law § 1141; Todd v Godek, 71 AD3d 872, 872 [2010]; Kann v Maggies ParatransitCorp., 63 AD3d 792, 793 [2009]; Palomo v Pozzi, 57 AD3d 498, 498 [2008]). Furthermore, adriver is negligent when an accident occurs because the driver failed to see that whichthrough proper use of the driver's senses he or she should have seen (see Todd vGodek, 71 AD3d at 872; Laino v Lucchese, 35 AD3d 672, 672 [2006]). A driverwho has the right-of-way has a duty to exercise reasonable care to avoid a collision withanother vehicle already in the intersection (see Todd v Godek, 71 AD3d at 872;Demant v Rochevet, 43AD3d 981, 981 [2007]). There can be more than one proximate cause of anaccident, and the issue of comparative negligence is generally a question for the jury todecide (see Bonilla vCalabria, 80 AD3d 720, 720 [2011]; Todd v Godek, 71 AD3d at872).
Here, in support of their motion for summary judgment, the movants submittedtranscripts of the deposition testimony of, among others, the plaintiff, Calabretta, andHassain, who presented conflicting testimony as to the facts surrounding the accident.Accordingly, the movants [*2]failed to establish, primafacie, that Calabretta's alleged violation of Vehicle and Traffic Law § 1141was the sole proximate cause of the accident (see Gause v Martinez, 91 AD3d 595, 597 [2012]; Pollack v Margolin, 84 AD3d1341, 1342 [2011]; Todd v Godek, 71 AD3d at 873). In light of the movants'failure to meet their prima facie burden, the motion was properly denied, regardless ofthe sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]; Demant v Rochevet, 43 AD3d at 981).Eng, P.J., Leventhal, Sgroi and Maltese, JJ., concur.