ACOSTA v. BLATT PLUMBING INC (2008)

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

Carmen D. ACOSTA, Plaintiff-Respondent, v. BLATT PLUMBING INC., et al., Defendants-Appellants.

Decided: October 28, 2008

TOM, J.P., SAXE, WILLIAMS, CATTERSON, MOSKOWITZ, JJ.

Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for appellants. Helen F. Dalton & Associates, P.C., Forest Hills (Helen F. Dalton of counsel), for respondent.

Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about February 13, 2008, which, in an action for personal injuries resulting from a car accident, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

It cannot be said, as a matter of law, that plaintiff's conduct was the sole proximate cause of the accident. The evidence shows that both plaintiff and defendant driver had stop signs before them, and each claims to be the first to enter the intersection where the collision occurred. Accordingly, there are triable issues of fact as to the events surrounding the accident, including which driver had the right of way (see e.g. Pappalardi v. Jones, 29 A.D.3d 391, 813 N.Y.S.2d 904 [2006]; Hernandez v. Bestway Beer & Soda Distrib., 301 A.D.2d 381, 753 N.Y.S.2d 467 [2003] ).

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