| Rivera v Fritts |
| 2016 NY Slip Op 01371 [136 AD3d 1249] |
| February 25, 2016 |
| Appellate Division, Third Department |
[*1]
| Cristina Rivera, Respondent, v David R. Fritts et al.,Appellants. |
Law Office of Theresa J. Puleo, Syracuse (John F. Pfeifer of counsel), forappellants.
Greene & Reid, PLLC, Syracuse (Eugene W. Lane of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered February11, 2015 in Cortland County, which denied defendants' motion for summary judgmentdismissing the complaint.
Plaintiff was driving a motor vehicle westbound on Route 90 in the Village ofHomer, Cortland County, when she came upon a tractor trailer traveling in front of herdriven by defendant David R. Fritts.[FN*] Fritts testified that he was driving at aspeed of approximately 35 miles per hour in a 55 mile-per-hour zone due to the steepincline of Route 90, and the flashing hazard lights on his vehicle were engaged. Afterplaintiff had followed Fritts' truck for about 10 minutes, Fritts slowed to approximately15 miles per hour and crossed over the fog line onto the right shoulder of the roadway,preparing to make a left turn onto Sweeney Road. Upon observing Fritts' vehicle movingonto the shoulder, plaintiff attempted to pass, crossing over the double yellow line thatbisected the two-lane roadway and moving into the oncoming lane. Fritts began toexecute the left turn before plaintiff had fully overtaken his vehicle, and the tractorportion of Fritts' vehicle collided with the passenger side of plaintiff's vehicle. The forceof the collision caused plaintiff's vehicle to be pushed into the ditch alongside theroadway, and she suffered injuries. Thereafter, plaintiff commenced this negligenceaction against Fritts and his employer, defendant Harvey R. Hatfield, individually and/ordoing business as H. Hatfield Trucking. Defendants moved for summary judgmentdismissing the complaint and Supreme [*2]Court denieddefendants' motion. Defendants appeal.
In order to succeed on their motion, defendants were required to "make a prima facieshowing of entitlement to judgment as a matter of law, tendering sufficient evidence todemonstrate the absence of any material issues of fact" (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; see Baird v Gormley, 116 AD3d 1121, 1122 [2014]). Insupport of the motion, defendants submitted, among other things, the depositiontestimony of plaintiff, Fritts and two nonparty witnesses. Taken together, the evidenceestablished that, just prior to the collision, plaintiff crossed over a double yellow line andinto the oncoming lane in an effort to overtake Fritts' vehicle. Plaintiff's stated reason forattempting to pass Fritts' vehicle in a no passing zone was that his vehicle was moving"too slow" and she believed that he was pulling over to permit her to pass. The evidenceof plaintiff's unexcused violation of the Vehicle and Traffic Law was sufficient toestablish that she was negligent as a matter of law (see Vehicle and Traffic Law§§ 1124, 1126 [a]; 1128 [d]; Baldwin v Degenhardt, 82 NY2d867, 868 [1993]; compare Bakerv Joyal, 4 AD3d 596, 597 [2004], lv denied 2 NY3d 706 [2004]).Nevertheless, a firmly rooted tenet of our negligence jurisprudence is that an accidentmay have more than one proximate cause (see Sweet v Perkins, 196 NY 482, 485[1909]; Grant v Nembhard,94 AD3d 1397, 1399 [2012]), and, upon review, we agree with Supreme Court thatdefendants' submissions failed to establish that plaintiff's negligence was the soleproximate cause of the accident.
Fritts acknowledged in his testimony that he was unaware of whether there were anyvehicles traveling behind him before he moved his vehicle onto the right shoulder of theroadway. He further conceded that he did not check his mirrors for traffic before thenexecuting the left turn, although it was his usual practice to do so. Notably," '[d]rivers have a duty to see what should be seen and to exercise reasonablecare under the circumstances to avoid an accident' " (Smith v Allen, 124 AD3d1128, 1130 [2015], quoting Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768, 769[2014]; see Corina v Boys& Girls Club of Schenectady, Inc., 82 AD3d 1477, 1478 [2011]). Therewas also conflicting proof as to whether Fritts had activated his left directional signalprior to the collision; Fritts and a nonparty witness testified that the directional signal wasengaged, while plaintiff and another nonparty witness testified that they did not see adirectional signal. Viewing the evidence in the light most favorable to plaintiff, thenonmoving party, we thus find that Supreme Court properly determined that there weretriable issues of fact as to whether Fritts acted reasonably under the circumstances andwhether any negligence on his part was a proximate cause of the accident (see O'Brien v Couch, 124AD3d 975, 977 [2015]; Ruthinoski v Brinkman, 63 AD3d 900, 902 [2009];Anderson v Miller, 263 AD2d 643, 644 [1999]; Premo v Lam, 222 AD2d872, 873 [1995]). Thus, defendants' motion was properly denied.
McCarthy, J.P., Rose and Devine, JJ., concur. Ordered that the order is affirmed,with costs.
Footnote *:It is undisputed thatFritts was acting within the scope of his employment at the time of the incident.