| Stanford v Smart Pick, Inc. |
| 2015 NY Slip Op 09670 [134 AD3d 1096] |
| December 30, 2015 |
| Appellate Division, Second Department |
[*1]
| Herman A. Stanford, Respondent, v SmartPick, Inc., et al., Appellants. |
Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Nicholas P. Hurzeler ofcounsel), for appellants.
Pazer, Epstein & Jaffe, P.C., New York, NY (Matthew J. Fein of counsel), forrespondent.
In an action, inter alia, to recover damages for personal injuries, the defendantsappeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated May 29,2015, which granted the plaintiff's motion for summary judgment on the issue ofliability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is denied.
The plaintiff allegedly was injured when a motorcycle he was driving with hisdaughter as a passenger collided with a bus owned by the defendant Smart Pick, Inc., andoperated by the defendant Christopher Savino (hereinafter the defendants' vehicle), at theintersection of Warwick Street and Glenmore Avenue in Brooklyn. The defendants'vehicle was traveling southbound on Warwick Street. Traffic on Warwick Street at thesubject intersection is governed by a stop sign. The plaintiff's motorcycle was travelingwestbound on Glenmore Avenue. There are no traffic control devices governing trafficon Glenmore Avenue at its intersection with Warwick Street.
The plaintiff commenced the instant action, inter alia, to recover damages forpersonal injuries. He thereafter moved for summary judgment on the issue of liability,contending, among other things, that the sole proximate cause of the accident wasSavino's failure to yield the right-of-way in violation of Vehicle and Traffic Law§ 1142 (a). The Supreme Court granted the motion. We reverse.
A driver with the right-of-way is entitled to anticipate that the other driver will obeythe traffic laws requiring him or her to yield (see Vehicle and Traffic Law§ 1142 [a]; McPherson v Chanzeb, 123 AD3d 1098, 1099 [2014]; Rodriguez v Klein, 116 AD3d939 [2014]; Regans vBaratta, 106 AD3d 893, 894 [2013]). However, there can be more than oneproximate cause of a motor vehicle accident and, thus, "a plaintiff moving for summaryjudgment on the issue of liability in an action alleging negligence must establish, primafacie, not only that the defendant was negligent but that the plaintiff was free fromcomparative fault" (Adams vBruno, 124 AD3d 566, 567 [2015]). The issue of comparative [*2]fault is generally a question for the trier of fact (see Allen v Echols, 88 AD3d926, 927 [2011]; Wilson vRosedom, 82 AD3d 970 [2011]).
Here, the plaintiff failed to establish, prima facie, his freedom from comparative fault(see Cattan v Sutton, 120AD3d 537, 538 [2014]; Skoczek v Delgado, 115 AD3d 844, 845 [2014]; Jones v Vialva-Duke, 106AD3d 1052, 1053 [2013]; Stern v Amboy Bus Co., Inc., 102 AD3d 763 [2013]).Since the plaintiff did not establish his prima facie entitlement to judgment as a matter oflaw, the Supreme Court should have denied his motion for summary judgment on theissue of liability, regardless of the sufficiency of the defendants' opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Rivera,J.P., Chambers, Sgroi and LaSalle, JJ., concur.