GORDON v. HONIG (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated April 19, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

Based upon the evidence submitted by the defendant in support of his motion for summary judgment, including the deposition testimony of both parties, which recounted conflicting versions of the circumstances leading up to the subject accident, questions of fact exist, inter alia, with regard to whether the defendant stopped at the stop sign regulating his direction of travel, and whether he failed to see that which he should have seen through the proper use of his senses (see Vehicle and Traffic Law §§ 1142[a], 1172[a];  McDonald v. Mauss, 38 A.D.3d 728, 833 N.Y.S.2d 535;  Berner v. Koegel, 31 A.D.3d 591, 592, 819 N.Y.S.2d 89).

As a result, the defendant failed to establish his prima facie entitlement to judgment as a matter of law, and the Supreme Court should have denied his motion (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  McDonald v. Mauss, supra ).