Tamesgwar Boodlall, appellant, v Diana Herrera, et al., respondents. v.

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Supreme Court, Appellate Division, Second Department, New York.

Tamesgwar Boodlall, appellant, v Diana Herrera, et al., respondents.

2010–10647 (Index No. 8653/09)

-- December 06, 2011

PETER B. SKELOS, J.P. L. PRISCILLA HALL PLUMMER E. LOTT JEFFREY A. COHEN, JJ. Thomas D. Wilson, P.C., Brooklyn, N.Y., for appellant. Brand Glick & Brand, P.C., Garden City, N.Y. (Heather Hammerman of counsel), for respondents.

Submitted—November 14, 2011

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated September 24, 2010, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident is denied.

A driver who has the right-of-way is entitled to anticipate that the other driver will obey traffic laws requiring them to yield to the driver with the right-of-way (see Vehicle and Traffic Law §§ 1143, 1173;  see Sanabria v. Paduch, 61 AD3d 839;  Mazza v. Manzella, 49 AD3d 609;  Yasinosky v. Lenio, 28 AD3d 652;  Ferrara v. Castro, 283 A.D.2d 392;  Palumbo v. Holtzer, 235 A.D.2d 409).   A driver who has the right-of-way, however, also has a duty to keep a proper lookout to avoid colliding with other vehicles (see Bonilla v. Calabria, 80 AD3d 720;  Pena v. Santana, 5 AD3d 649).  “There can be more than one proximate cause of an accident” (Cox v. Nunez, 23 AD3d 427, 427;  see Gardella v. Esposito Foods, Inc., 80 AD3d 660).

Here, in support of the motion, the defendants submitted the deposition testimony of the parties, who presented conflicting testimony as to the facts surrounding the accident.   Thus, the defendants failed to establish, prima facie, that the plaintiff's alleged negligent operation of his vehicle was the sole proximate cause of the accident (see generally Bonilla v. Calabria, 80 AD3d 720;  Todd v. Godek, 71 AD3d 872).   In light of the defendants' failure to meet their prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident.

SKELOS, J.P., HALL, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

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