| Arias v Tiao |
| 2014 NY Slip Op 08796 [123 AD3d 857] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Fasuto C. Arias, Appellant, v Ronnie P. Tiao etal., Respondents. |
Sacco & Filas, LLP, Astoria, N.Y. (Brad S. Levin of counsel), forappellant.
Adams, Hanson, Rego, Kaplan & Fishbein, Albany, N.Y. (Paul G. Hanson ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Siegal, J.), entered October 10, 2013,which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is denied.
A two-vehicle accident occurred in the intersection of 72nd Street and 30th Avenuein Queens County. The first vehicle was owned and operated by the plaintiff, and thesecond vehicle was owned by the defendant Michael Wang and operated by thedefendant Ronnie P. Tiao (hereinafter together the defendants). At the time of theaccident, the plaintiff was traveling on 72nd Street and Tiao was traveling on 30thAvenue. It is undisputed that 30th Avenue at its intersection with 72nd Street is notgoverned by any traffic control devices, while 72nd Street at its intersection with 30thAvenue is controlled by a stop sign. The plaintiff alleged that, after he stopped at the stopsign on 72nd Street at its intersection with 30th Avenue, he proceeded to make a left turnat the intersection, at which time his vehicle was struck in the middle of the intersectionby the defendants' vehicle. The plaintiff commenced this action against the defendants,alleging a cause of action to recover damages for negligence. The defendants moved forsummary judgment dismissing the complaint on the grounds that the plaintiff violatedVehicle and Traffic Law § 1142 (a) by failing to yield the right-of-way tothe defendants' vehicle, and that they were not comparatively at fault in the happening ofthe accident. The Supreme Court granted the motion, and we reverse.
A driver who has the right-of-way is entitled to anticipate that other drivers will obeytraffic laws that require them to yield (see Vehicle and Traffic Law§ 1141; Rodriguezv Klein, 116 AD3d 939 [2014]; Regans v Baratta, 106 AD3d 893, 894 [2013]; Ahern v Lanaia, 85 AD3d696 [2011]; Mohammad vNing, 72 AD3d 913, 914 [2010]). Moreover, a driver is negligent where he hasfailed to see that which through proper use of his senses he should have seen (seeRodriguez v Klein, 116 AD3d at 939; Laino v Lucchese, 35 AD3d 672 [2006]; Berner v Koegel, 31 AD3d591, 592 [2006]; Bongiovi v Hoffman, 18 [*2]AD3d 686, 687 [2005]; Bolta v Lohan, 242 AD2d356 [1997]). At the same time, a driver traveling with the right-of-way may neverthelessbe found to have contributed to the happening of the accident if he or she did not usereasonable care to avoid the accident (see Todd v Godek, 71 AD3d 872 [2010]; see alsoRegans v Baratta, 106 AD3d at 894; Simmons v Canady, 95 AD3d 1201, 1202 [2012]). "Therecan be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d427, 427 [2005]; see Jonesv Vialva-Duke, 106 AD3d 1052 [2013]; Graeber-Nagel v Naranjan, 101 AD3d 1078 [2012]), andthe issue of comparative fault is generally a question for the jury to decide (see Sokolovsky v Mucip, Inc.,32 AD3d 1011, 1011-1012 [2006]; Valore v McIntosh, 8 AD3d 662 [2004]). Thus, a movantseeking summary judgment is required to make a prima facie showing that he or she isfree from comparative fault (see Jones v Vialva-Duke, 106 AD3d at 1053;Graeber-Nagel v Naranjan, 101 AD3d at 1078; Mackenzie v City of NewYork, 81 AD3d 699 [2011]; Bonilla v Gutierrez, 81 AD3d 581, 582 [2011]; Roman v A1 Limousine, Inc.,76 AD3d 552 [2010]).
In support of their motion, the defendants relied upon, inter alia, the depositiontranscripts of the plaintiff and Tiao. While the defendants submitted evidence that theplaintiff failed to yield the right-of-way to their vehicle in violation of Vehicle andTraffic Law § 1142 (a), their submissions in support of their motion failedto establish Tiao's freedom from comparative fault and that the plaintiff's violation wasthe sole proximate cause of the accident (see Skoczek v Delgado, 115 AD3d 844, 845 [2014]; Stern v Amboy Bus Co., Inc.,102 AD3d 763, 763 [2013]; Graeber-Nagel v Naranjan, 101 AD3d 1078, 1078-1079[2012]; Simmons v Canady, 95 AD3d at 1202-1203). Tiao recalled at hisdeposition that, prior to entering the intersection, when he was about five to eight feettherefrom, he observed the plaintiff's vehicle stopped at the stop sign on 72nd Street.Thereafter, he testified that three to four seconds elapsed between his seeing theplaintiff's vehicle initially and the collision. Tiao did not testify as to the movement of theplaintiff's vehicle from the point he initially observed it to the point of impact betweenthe vehicles, and he admitted that he could not recall where he was looking at the pointof impact. He further admitted that he did not take any evasive action to avoid the impactwith the plaintiff's vehicle in the intersection. Based on Tiao's testimony, the defendantsfailed to eliminate all triable issues of fact as to whether Tiao took reasonable care toavoid the collision with the plaintiff's vehicle in the intersection (see Simmons vCanady, 95 AD3d at 1203; Cox v Nunez, 23 AD3d at 428).
Since the defendants failed to meet their prima facie burden, the Supreme Courtshould have denied their motion for summary judgment dismissing the complaint,without regard to the sufficiency of the plaintiff's opposition papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Simmons v Canady, 95 AD3d at1203). Chambers, J.P., Miller, Duffy and LaSalle, JJ., concur.