| Nunez v Olympic Fence & Railing Co., Inc. |
| 2016 NY Slip Op 02791 [138 AD3d 807] |
| April 13, 2016 |
| Appellate Division, Second Department |
[*1]
| Oslbaldo Nunez, Appellant, v Olympic Fence& Railing Co., Inc., Respondent, et al., Defendant. |
Gratt & Associates, P.C. (Mitchell Dranow, Sea Cliff, NY, of counsel), forappellant.
Martyn, Toher, Martyn & Rossi (Harris, King, Fodera & Correia, NewYork, NY [Laura Efrati], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Schack, J.), dated May 18, 2015, whichgranted the motion of the defendant Olympic Fence & Railing Co., Inc., to vacate itsdefault in appearing for oral argument on its prior motion for summary judgmentdismissing the complaint insofar as asserted against it, and for summary judgementdismissing the complaint insofar as asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the motion of the defendant Olympic Fence & Railing Co.,Inc., which was for summary judgment dismissing the complaint insofar as assertedagainst it, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed, with costs to the plaintiff.
According to the deposition testimony of the parties, on the afternoon of June 1,2012, the plaintiff, while operating a bicycle in the wrong direction on a one-way streetin Queens, was injured when his bicycle struck the prong of a forklift owned by thedefendant Olympic Fence and Railing Co., Inc. (hereinafter the defendant), and operatedby an employee of the defendant, as the forklift was exiting a driveway onto the street.The forklift operator's view of any traffic that was approaching from the wrong directionwas obstructed by a truck that was parked on the street adjacent to the driveway.
The plaintiff commenced this action to recover damages for personal injuries. Afterthe completion of discovery, the defendant moved for summary judgment dismissing thecomplaint insofar as asserted against it on the ground that the plaintiff's negligence wasthe sole proximate cause of the accident. However, the defendant failed to appear for oralargument on the administratively-adjourned return date of March 25, 2015, and themotion was marked off the calendar. On April 2, 2015, the defendant moved to vacate itsdefault in appearing for oral argument on the ground that it had been unaware of theMarch 25, 2015, return date, and for summary judgment dismissing the complaint insofaras asserted against it. The Supreme Court granted that branch of the defendant's motionwhich was to vacate its default, and thereupon granted the branch of the motion whichwas for summary judgment dismissing the complaint insofar as asserted against [*2]it. The plaintiff appeals.
The Supreme Court providently exercised its discretion in granting that branch of thedefendant's motion which was to vacate its default in appearing on theadministratively-adjourned return date of the motion. The defendant demonstrated areasonable excuse for the failure of its attorney to appear for oral argument on theadministratively-adjourned return date, it moved expeditiously to vacate the default, andthere was no evidence that the default was willful or that the plaintiff was prejudiced bythe delay (see Kramarenko vNew York Community Hosp., 134 AD3d 770, 772 [2015]; Brinson v Pod, 129 AD3d1005, 1009 [2015]; Suede vSuede, 124 AD3d 869, 871-872 [2015]). In addition, the defendantdemonstrated a potentially meritorious position on its motion for summary judgment,warranting a decision on the merits (see CPLR 5015 [a] [1]; Kramarenko vNew York Community Hosp., 134 AD3d at 772; Brinson v Pod, 129 AD3dat 1008; Cohen vRomanoff, 83 AD3d 989 [2011]; Parker v City of New York, 272 AD2d310, 311 [2000]).
The Supreme Court erred in granting that branch of the defendant's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Whilethe plaintiff was negligent in traveling the wrong way on a one-way street (seeVehicle and Traffic Law §§ 1127 [a]; 1231, 1234 [a]), there canbe more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427 [2005]). A defendantmoving for summary judgment has the burden of establishing freedom from fault in thehappening of the accident (seeGezelter v Pecora, 129 AD3d 1021, 1021-1022 [2015]). Thus, the fact that theplaintiff was riding his bicycle in the wrong direction on a one-way street would notpreclude a finding that negligence by the defendant's employee contributed to theaccident (see Palmeri vErricola, 122 AD3d 697 [2014]; Espiritu v Shuttle Express Coach, Inc., 115 AD3d 787[2014]).
Here, the defendant failed to meet its prima facie burden of establishing the forkliftoperator's freedom from fault in the happening of this accident as a matter of law (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Palmeri vErricola, 122 AD3d at 698;Cattan v Sutton, 120 AD3d 537, 538 [2014]; Sirlin v Schreib, 117 AD3d819 [2014]). The papers the defendant submitted in support of its motiondemonstrated the existence of triable issues of fact as to whether the forklift operatorfailed to exercise due care before proceeding from the driveway onto the street(see Vehicle and Traffic Law §§ 1143, 1146 [a]; 1173;Palmeri v Erricola, 122 AD3d at 698; Espiritu v Shuttle Express Coach,Inc., 115 AD3d at 789; Lugo v Brentwood Union Free School Dist., 212AD2d 582, 583 [1995]; Powers v Medina, 1 AD2d 727 [1955]; Thomson vGasteiger, 199 App Div 744 [1922]). As the defendant failed to meet its prima facieburden, the Supreme Court should have denied that branch of its motion which was forsummary judgment dismissing the complaint insofar as asserted against it regardless ofthe sufficiency of the plaintiff's papers submitted in opposition (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d at 853; Palmeri v Erricola, 122 AD3d at698). Rivera, J.P., Dillon, Chambers and Dickerson, JJ., concur.