| Palmeri v Erricola |
| 2014 NY Slip Op 07637 [122 AD3d 697] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| James Palmeri, Appellant, v Arlene Erricola,Respondent. |
Krentsel & Guzman LLP, New York, N.Y. (Nicholas Dell'Anno of counsel), forappellant.
James G. Bilello (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J.Mitola and Gerard Ferrara], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Ruchelsman, J.), dated November 20, 2013,which granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is denied.
During the afternoon of May 28, 2011, the plaintiff was riding a bicycle on 80thStreet in Brooklyn. 80th Street is a one-way street, and the plaintiff was traveling in thewrong direction. At the same time, the defendant was operating her motor vehicle on23rd Avenue, a two-lane roadway governed by a stop sign at its intersection with 80thStreet. In the middle of this intersection, the plaintiff's bicycle and the defendant's motorvehicle collided, and the plaintiff allegedly was injured. In November 2011, the plaintiffcommenced this action against the defendant. After the completion of discovery, thedefendant moved for summary judgment dismissing the complaint, and the SupremeCourt granted the motion.
Although the plaintiff was negligent as a matter of law in traveling the wrong way on80th Street (see Vehicle and Traffic Law § 1234 [a]; see alsoVehicle and Traffic Law § 1127 [a]; Espiritu v Shuttle Express Coach,Inc., 115 AD3d 787, 789 [2014]), there can be more than one proximate causeof an accident, and the proponent of a motion for summary judgment has the burden ofestablishing freedom from comparative fault as a matter of law (see Cattan v Sutton, 120 AD3d537, 538 [2014]; Sirlin vSchreib, 117 AD3d 819 [2014]; Espiritu v Shuttle Express Coach, Inc.,115 AD3d at 789; Burnett vReisenauer, 107 AD3d 656 [2013]).
Here, the defendant failed to make a prima facie showing that she was free fromcomparative fault in the happening of the accident (see Cattan v Sutton, 120AD3d at 538; Espiritu v Shuttle Express Coach, Inc., 115 AD3d at 789; Allen v Echols, 88 AD3d926, 926-927 [2011]). When asked at her deposition when she first saw theplaintiff's bicycle, she responded "I saw an object. As I was—I stopped. And thenas I proceeded to cross the intersection, I felt something. And I saw [*2]an object." This testimony demonstrated the existence oftriable issues of fact exist regarding whether the defendant failed to see what was there tobe seen through the proper use of her senses (see Calderon-Scotti v Rosenstein, 119 AD3d 722 [2014];Espiritu v Shuttle Express Coach, Inc., 115 AD3d at 789; Colpan v Allied Cent. Ambulette,Inc., 97 AD3d 776, 777-778 [2012]) and whether she failed to exercisereasonable care to avoid the collision with the plaintiff's bicycle (see Bullock v Calabretta, 119AD3d 884 [2014]; Espiritu v Shuttle Express Coach, Inc., 115 AD3d at 789;Colpan v Allied Cent. Ambulette, Inc., 97 AD3d at 777). Accordingly, since thedefendant failed to establish her prima facie entitlement to judgment as a matter of law,the Supreme Court should have denied her motion for summary judgment dismissing thecomplaint, regardless of the sufficiency of the plaintiff's opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Espiritu vShuttle Express Coach, Inc., 115 AD3d at 789). Eng, P.J., Dillon, Duffy and Barros,JJ., concur.