Rebecca Lopez, appellant, v. MOORE (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff Rebecca Lopez appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated February 8, 2022.  The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging culpable conduct and comparative negligence insofar as asserted against the plaintiff Rebecca Lopez.

ORDERED that the order is affirmed insofar as appealed from, with costs.

This action arises from a collision between a vehicle operated by the plaintiff Rebecca Lopez and an approximately 50–foot tractor-trailer operated by the defendant Richard Dwayne Moore in Manhattan near the intersection of West 179th Street and Broadway.  At the time of the accident, Moore was making a left-hand turn from Broadway onto West 179th Street when the left back portion of the trailer came into contact with the right rear panel of the plaintiffs’ vehicle.  The plaintiffs commenced this action to recover damages for personal injuries allegedly sustained in the accident, and subsequently moved for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging culpable conduct and comparative negligence.  In the order appealed from, the Supreme Court granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of the defendants’ liability and denied that branch of the plaintiffs’ motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging culpable conduct and comparative negligence insofar as asserted against Lopez.  Lopez appeals.

Although it was established that Moore was negligent and that his negligence was a proximate cause of the alleged injuries, there can be more than one proximate cause of an accident (see Bornsztejn v. Zito, 221 A.D.3d 770, 771, 198 N.Y.S.3d 218;  Balanta v. Go Lin Wu, 220 A.D.3d 720, 721, 197 N.Y.S.3d 545;  Wiessner v. Phillips, 201 A.D.3d 776, 777, 156 N.Y.S.3d 914).  In order to be entitled to summary judgment dismissing the defendants’ affirmative defenses alleging culpable conduct and comparative negligence, Lopez was required to establish her own freedom from comparative negligence (see Crist v. Rosenberger, 219 A.D.3d 569, 571, 195 N.Y.S.3d 28;  Seizeme v. Levy, 208 A.D.3d 809, 810, 174 N.Y.S.3d 421;  Sapienza v. Harrison, 191 A.D.3d 1028, 1029, 142 N.Y.S.3d 584).

The evidence submitted by the plaintiffs in support of their motion established, prima facie, that Lopez was not comparatively at fault in the happening of the accident (see Joseph–Felix v. Hersh, 208 A.D.3d 571, 572, 173 N.Y.S.3d 591;  Diamond v. Comins, 194 A.D.3d 784, 785, 148 N.Y.S.3d 492).  In opposition, however, the defendants raised a triable issue of fact as to whether Lopez was comparatively at fault in the happening of the accident (see Joseph–Felix v. Hersh, 208 A.D.3d at 573, 173 N.Y.S.3d 591;  Ustelimova v. Madar, 159 A.D.3d 984, 984, 72 N.Y.S.3d 595).

Lopez's remaining contention concerning the uncertified police accident report is not properly before this Court, as it is raised on appeal for the first time in her reply brief (see Yasso v. Town of Brookhaven, 219 A.D.3d 784, 787, 194 N.Y.S.3d 564;  Deutsche Bank Natl. Trust Co. v. Smith, 211 A.D.3d 817, 819–820, 181 N.Y.S.3d 117).

Accordingly, the Supreme Court properly denied that branch of the plaintiffs’ motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging culpable conduct and comparative negligence insofar as asserted against Lopez.

BRATHWAITE NELSON, J.P., MALTESE, VOUTSINAS and TAYLOR, JJ., concur.