| Cattan v Sutton |
| 2014 NY Slip Op 05764 [120 AD3d 537] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Jack Cattan, a Infant, by His Father and NaturalGuardian, Judah Cattan, et al., Respondent, v Isaac A. Sutton et al.,Respondents, and V. Konstantinovsky et al., Appellants. |
James G. Bilello, Westbury, N.Y. (Patricia McDonagh and Amy J. Koreen ofcounsel), for appellants.
Weitz & Luxenberg, P.C., New York, N.Y. (Shareef Rabaa and Stuart R.Friedman of counsel), for plaintiffs-respondents.
In an action to recover damages for personal injuries, etc., the defendants V.Konstantinovsky and Zack Konstantinovsky appeal, as limited by their brief, from somuch of an order of the Supreme Court, Kings County (Knipel, J.), dated August 6,2013, as denied their motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
On the morning of November 17, 2010, the infant plaintiff allegedly was injuredwhen he was involved in a motor vehicle accident as a rear seat passenger in a motorvehicle operated by the defendant Louise F. Sutton (hereinafter Louise) and owned bythe defendant Isaac A. Sutton. The other motor vehicle involved in the accident wasoperated by the defendant Zack Konstantinovsky (hereinafter Zack) and owned by thedefendant V. Konstantinovksy (hereinafter together the Konstantinovsky defendants).The accident occurred in the intersection of Avenue K and East 17th Street in Brooklyn,as the Sutton vehicle was making a left turn onto East 17th Street from the eastboundlane of Avenue K and the Konstantinovsky vehicle was traveling straight in thewestbound lane of Avenue K.
The Konstantinovsky defendants moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them. The Supreme Courtdenied their motion.
Although a driver with the right-of-way is entitled to anticipate that the other driverwill obey the traffic laws requiring him or her to yield (see Moreno v Gomez, 58AD3d 611, 612 [2009]), a driver is bound to see what is there to be seen through theproper use of his or her senses and is negligent for failure to do so (see Lu Yuan Yang v Howsal CabCorp., 106 AD3d 1055, 1056 [2013]; Katanov v County of Nassau, 91 AD3d 723, 725 [2012];Wilson v Rosedom, 82AD3d 970 [2011]). Moreover, [*2]there can be morethan one proximate cause of a motor vehicle accident and, thus, the proponent of asummary judgment motion has the burden of establishing freedom from comparativefault as a matter of law (seeSimmons v Canady, 95 AD3d 1201, 1202-1203 [2012]; Pollack v Margolin, 84 AD3d1341, 1342 [2011]). The issue of comparative fault is generally a question for thetrier of fact (see Fogel vRizzo, 91 AD3d 706 [2012]; Gause v Martinez, 91 AD3d 595 [2012]; Allen v Echols, 88 AD3d926, 926 [2011]).
Here, the Konstantinovsky defendants failed to meet their prima facie burden ofdemonstrating their entitlement to judgment as a matter of law. In support of theirmotion, the Konstantinovsky defendants submitted, inter alia, excerpts of the depositiontestimony of Zack and the infant plaintiff. Although this testimony demonstrated thatZack had the right of way when his vehicle came into contact with the vehicle driven byLouise, it was insufficient to establish, prima facie, that Zack's actions did not contributeto the happening of the accident and that Louise's alleged negligence was the soleproximate cause of the accident (see Tapia v Royal Tours Serv., Inc., 67 AD3d 894, 895[2009]; Gray v Dembeck,48 AD3d 748, 749-750 [2008]; Casaregola v Farkouh, 1 AD3d 306, 307 [2003]; Siegelv Sweeney, 266 AD2d 200, 201-202 [1999]; see also Guzman v Bowen, 38 AD3d 837, 838[2007]).
Since the Konstantinovsky defendants did not establish their prima facie entitlementto judgment as a matter of law, the Supreme Court properly denied their motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them, and we need not examine the sufficiency of the opposing papers (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Chambers, J.P., Austin,Hinds-Radix and Duffy, JJ., concur.