TSARENKOV v. ROSENBAUM (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated January 21, 2021.  The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant Yehuda Z. Rosenbaum (hereinafter Rosenbaum) was driving a vehicle owned by the defendant David M. Rosenbaum (hereinafter together the defendants) when Rosenbaum collided with the plaintiff, who was riding a bicycle, at the intersection of Park Avenue and Bedford Avenue in Brooklyn.  Rosenbaum was driving east on Park Avenue, and the plaintiff was cycling north on Bedford Avenue.  The plaintiff commenced this action against the defendants to recover damages for personal injuries she sustained in the accident.  The defendants moved for summary judgment dismissing the complaint.  In an order dated January 21, 2021, the Supreme Court denied the defendants’ motion.  The defendants appeal.

“As there can be more than one proximate cause of an accident, a defendant driver moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Oliinyk v. Yusupov, 218 A.D.3d 602, 603, 192 N.Y.S.3d 614;  see Ballentine v. Perrone, 179 A.D.3d 993, 994, 114 N.Y.S.3d 696).  “[G]enerally, it is for the trier of fact to determine the issue of proximate cause” (Soto v. Colletta, 225 A.D.3d 819, 820, 207 N.Y.S.3d 615 [internal quotation marks omitted];  see Galloway v. Lux Credit Consultants, LLC, 224 A.D.3d 891, 891, 206 N.Y.S.3d 164).  “The operator of a vehicle with the right-of-way is entitled to assume that others will obey the traffic laws requiring them to yield” (Saviano v. TT of Massapequa, Inc., 223 A.D.3d 851, 852–853, 203 N.Y.S.3d 716 [internal quotation marks omitted];  see Kirby v. Lett, 208 A.D.3d 1174, 1175, 175 N.Y.S.3d 87).  At the same time, “a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision [and] to see what there is to be seen through the proper use of his or her senses” (Ballentine v. Perrone, 179 A.D.3d at 994, 114 N.Y.S.3d 696;  see Lopresti v. Estate of Galante, 221 A.D.3d 798, 799, 198 N.Y.S.3d 205).

Here, in support of their motion, the defendants submitted, inter alia, the transcripts of Rosenbaum's and the plaintiff's depositions.  The defendants failed to establish, prima facie, that Rosenbaum was free from fault in the happening of the accident or that the alleged negligence of the plaintiff was the sole proximate cause thereof (see Rogers v. Consolidated Edison Co. of N.Y., Inc., 223 A.D.3d 689, 691, 203 N.Y.S.3d 360;  Woods v. Burgos, 220 A.D.3d 688, 689, 197 N.Y.S.3d 324).  In particular, the defendants failed to demonstrate that Rosenbaum kept a proper lookout as he approached the intersection or that he exercised reasonable care to avoid a collision with the plaintiff's bicycle (see Elkholy v. Dawkins, 175 A.D.3d 1487, 1488, 109 N.Y.S.3d 392;  Rojas v. Solis, 154 A.D.3d 985, 986, 62 N.Y.S.3d 511).

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint.

BARROS, J.P., FORD, VOUTSINAS and LANDICINO, JJ., concur.