| Gezelter v Pecora |
| 2015 NY Slip Op 05440 [129 AD3d 1021] |
| June 24, 2015 |
| Appellate Division, Second Department |
[*1]
| Francine Gezelter, Appellant, v GiuseppePecora, Respondent. |
Michael F. Mongelli II, P.C., Flushing, N.Y. (Martin C. Chow of counsel), forappellant.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [MarshallD. Sweetbaum], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Lebowitz, J.), entered July 16, 2014, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is denied.
The plaintiff, while operating her husband's vehicle, was involved in a collision witha vehicle owned and operated by the defendant, at the intersection of 164th Street and33rd Avenue in Queens. The plaintiff's vehicle had been traveling northbound on 164thStreet, a two-way street, while the defendant's vehicle had been traveling eastbound on33rd Avenue, which is also a two-way street. The subject intersection was controlled by astop sign for traffic traveling on 164th Street, while vehicles traveling on 33rd Avenuewere not governed by any traffic control devices.
The plaintiff commenced this action to recover damages for the injuries she allegedlysustained in the accident. The defendant moved for summary judgment dismissing thecomplaint on the ground that the plaintiff violated Vehicle and Traffic Law§ 1142 (a) by failing to yield the right-of-way to his vehicle. The SupremeCourt granted the motion. We reverse.
"A defendant moving for summary judgment in a negligence action has the burden ofestablishing, prima facie, that he or she was not at fault in the happening of the subjectaccident" (Boulos vLerner-Harrington, 124 AD3d 709, 709 [2015]; see Rungoo v Leary, 110AD3d 781, 782 [2013]). " 'There can be more than one proximate cause ofan accident' " (Lopez vReyes-Flores, 52 AD3d 785, 786 [2008], quoting Cox v Nunez, 23 AD3d427, 427 [2005]), and "[g]enerally, it is for the trier of fact to determine the issue ofproximate cause" (Kalland vHungry Harbor Assoc., LLC, 84 AD3d 889, 889 [2011]; see Howard vPoseidon Pools, 72 NY2d 972, 974 [1988]).
A driver traveling with the right-of-way may be found to have contributed to the[*2]happening of the accident if he or she did not usereasonable care to avoid the accident (see Arias v Tiao, 123 AD3d 857 [2014]; Cajas-Romero v Ward, 106AD3d 850, 851 [2013]; Shui-Kwan Lui v Serrone, 103 AD3d 620 [2013]; Todd v Godek, 71 AD3d872, 872 [2010]) or failed to see "what is there to be seen through the proper use ofhis or her senses" (Lu YuanYang v Howsal Cab Corp., 106 AD3d 1055, 1056 [2013]; see Bullock v Calabretta, 119AD3d 884, 885 [2014]; Colpan v Allied Cent. Ambulette, Inc., 97 AD3d 776, 777[2012]).
At the outset, contrary to the plaintiff's contention, the defendant submittedadmissible evidence along with his attorney's affirmation. "[T]he failure to submit anaffidavit by a person with knowledge of the facts is not necessarily fatal to a motionwhere . . . the moving party submits other proof, such as depositiontestimony" (Vetrano v J.Kokolakis Contr., Inc., 100 AD3d 984, 986 [2012]; see Alvarez v ProspectHosp., 68 NY2d 320, 325 [1986]; Olan v Farrell Lines, 64 NY2d 1092, 1093[1985]; Notskas v LongwoodAssoc., LLC, 112 AD3d 599, 599-600 [2013]; Maragos v Sakurai, 92 AD3d922, 923 [2012]). Here, the defendant's certified deposition transcript, althoughunsigned, was admissible since it was his own testimony that he was proffering insupport of his motion and, in effect, he adopted it as accurate (see Pavane v Marte, 109 AD3d970, 970 [2013]; Vetrano v J. Kokolakis Contr., Inc., 100 AD3d at 986; Rodriguez v Ryder Truck, Inc.,91 AD3d 935, 936 [2012]). In addition, the transcript of the plaintiff's depositiontestimony, which was unsigned, was also admissible for the purpose of the defendant'smotion, since the transcript was certified by the reporter and the plaintiff did notchallenge its accuracy (see Rodriguez v Ryder Truck, Inc., 91 AD3d at 936; Zalot v Zieba, 81 AD3d935, 936 [2011]).
With respect to the police accident report submitted by the defendant in support ofhis motion, it was not certified as a business record and thus constituted inadmissiblehearsay (see CPLR 4518 [a]; Hazzard v Burrowes, 95 AD3d 829 [2012]; Hernandez v Tepan, 92 AD3d721, 722 [2012]; Rodriguez v Ryder Truck, Inc., 91 AD3d at 936), exceptfor that portion of the report which contained a party admission by the plaintiff that shedid not have a recollection of the accident (see Jackson v Trust, 103 AD3d 851, 852 [2013]; Scott v Kass, 48 AD3d785, 786 [2008]; Kemenyash v McGoey, 306 AD2d 516, 516 [2003]).
With respect to the merits of the defendant's motion, the defendant failed todemonstrate his prima facie entitlement to judgment as a matter of law. While hesubmitted evidence that the plaintiff failed to yield the right-of-way to his vehicle inviolation of Vehicle and Traffic Law § 1142 (a), his submissions in supportof his motion failed to establish his freedom from fault and that the plaintiff's violationwas the sole proximate cause of the accident (see Arias v Tiao, 123 AD3d at 857;Berish v Vasquez, 121AD3d 634, 635 [2014]; Bullock v Calabretta, 119 AD3d at 885; Todd vGodek, 71 AD3d at 873). The defendant testified at his deposition that he neverobserved the plaintiff's vehicle prior to the happening of the accident. Moreover, he didnot testify as to any evasive action he attempted to take to avoid the impact within theintersection. Further, the defendant submitted evidence that the front of his vehicle struckthe center of the plaintiff's vehicle and that the plaintiff had stopped at the stop sign andlooked both ways multiple times before proceeding into the intersection. Based on thedefendant's submissions, he failed to eliminate all triable issues of fact as to whether hetook reasonable care to avoid the collision with the plaintiff's vehicle in the intersection(see Arias v Tiao, 123 AD3d at 857).
Since the defendant failed to meet his prima facie burden, the Supreme Court shouldhave denied his motion for summary judgment dismissing the complaint, without regardto the sufficiency of the plaintiff's opposition papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). Skelos, J.P., Leventhal, Austin andMiller, JJ., concur.