SHUI–KWAN LUI, etc., respondent, v. Robert L. SERRONE, et al., appellants.
-- February 06, 2013
Havkins Rosenfeld Ritzert & Varriale, LLP, Mineola, N.Y. (Gail L. Ritzert and Jessica Serva of counsel), for appellant.Caesar & Napoli, New York, N.Y. (Robert Stein of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), entered July 25, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
A driver is bound to see what is there to be seen through the proper use of his or her senses (see Matamoro v. City of New York, 94 A.D.3d 722, 941 N.Y.S.2d 684; Wilson v. Rosedom, 82 A.D.3d 970, 919 N.Y.S.2d 59; Topalis v. Zwolski, 76 A.D.3d 524, 525, 906 N.Y.S.2d 317; Gonzalez v. County of Suffolk, 277 A.D.2d 350, 716 N.Y.S.2d 404), and is negligent for the failure to do so (see Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861). A driver also has a duty to exercise reasonable care under the circumstances to avoid an accident (see Filippazzo v. Santiago, 277 A.D.2d 419, 420, 716 N.Y.S.2d 710; Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545).
Although a violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v. DiSalvo, 79 A.D.3d 1023, 914 N.Y.S.2d 236; Botero v. Erraez, 289 A.D.2d 274, 734 N.Y.S.2d 565; Ferrara v. Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81; Packer v. Mirasola, 256 A.D.2d 394, 681 N.Y.S.2d 559), “ ‘[t]here can be more than one proximate cause of an accident’ “ (Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389, quoting Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604; see Allen v. Echols, 88 A.D.3d 926, 927, 931 N.Y.S.2d 402). Consequently, “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” (Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282; see Gardella v. Esposito Foods, Inc., 80 A.D.3d 660, 660, 914 N.Y.S.2d 678), bearing in mind “that the issue of comparative fault is generally a question for the trier of fact” (Allen v. Echols, 88 A.D.3d at 927, 931 N.Y.S.2d 402).
The defendants correctly contend on appeal that, on the record presented, the plaintiff failed to establish, prima facie, that her injured son (hereinafter the infant) was not comparatively at fault in the happening of the accident. The deposition testimony of the defendant Robert L. Serrone established that Serrone was negligent as a matter of law, as he violated Vehicle and Traffic Law § 1146(a). In this respect, Serrone admitted to not seeing the infant, who was riding a bicycle as Serrone was turning right at the subject intersection, and admitted to striking the infant in the course of making that turn. Thus, Serrone failed to see what was clearly there to be seen as he made his right turn at the intersection. However, the plaintiff, as the proponent of the summary judgment motion, failed to establish the infant's freedom from comparative fault. The infant himself admitted at his deposition that, while he was stopped on his bicycle, at least partially in the street at the corner of the intersection, he observed the truck being driven by Serrone as it was turning slowly towards him, and made no attempt to move out of the way. Therefore, his testimony presented a triable issue of fact as to whether he was comparatively at fault in the happening of the accident (see Thoma v. Ronai, 82 N.Y.2d 736, 602 N.Y.S.2d 323, 621 N.E.2d 690; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; see also Myles v. Blain, 81 A.D.3d 798, 916 N.Y.S.2d 836), and this failure to establish freedom from comparative fault required the denial of the plaintiff's motion for summary judgment, regardless of the sufficiency of the defendants' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).