GARDNER v. Theresa L. Brady, et al., appellants. (2009)

In an action to recover damages for personal injuries, the defendants Theresa L. Brady and Sean Brady appeal from an order of the Supreme Court, Queens County (Satterfield, J.), entered May 1, 2008, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured in a three-vehicle collision in Jamaica.   The plaintiff's vehicle was proceeding west on Linden Boulevard when it was struck by a vehicle operated by the defendant Sean Brady and owned by the defendant Theresa L. Brady (hereinafter the appellants).   The appellants' vehicle had been proceeding east on Linden Boulevard, when it was struck by a vehicle operated by the defendant Harold G. Smith, after he allegedly failed to yield the right-of-way at a stop sign while proceeding south on 146th Street.   The Supreme Court denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them, and we affirm.

 “There can be more than one proximate cause of an accident [citations omitted].   The fact that [a party] allegedly ‘ran’ the stop sign would not preclude a finding that comparative negligence by [another party] contributed to the accident” (Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604 [citations omitted];  see Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365).  “A driver with the right of way has a duty to use reasonable care to avoid a collision” (Cox v. Nunez, 23 A.D.3d at 427, 805 N.Y.S.2d 604;  see Siegel v. Sweeney, 266 A.D.2d 200, 697 N.Y.S.2d 317).

 Accordingly, while the appellants established their prima facie entitlement to judgment as a matter of law by demonstrating that Smith failed to stop at the stop sign, the plaintiff raised a triable issue of fact by demonstrating, through Smith's affidavit, that the allegedly negligent conduct of Sean Brady may have contributed to the accident (see Campbell-Lopez v. Cruz, 31 A.D.3d 475, 818 N.Y.S.2d 554;  Cox v. Nunez, 23 A.D.3d at 428, 805 N.Y.S.2d 604;  Romano v. 202 Corp., 305 A.D.2d at 577, 759 N.Y.S.2d 365;  Bodner v. Greenwald, 296 A.D.2d 564, 745 N.Y.S.2d 711).   Thus, there are triable issues of fact as to whether Sean Brady used reasonable care to avoid the collision, on the basis of which the Supreme Court correctly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them (see Cox v. Nunez, 23 A.D.3d at 428, 805 N.Y.S.2d 604;  Romano v. 202 Corp., 305 A.D.2d at 577, 759 N.Y.S.2d 365;  Siegel v. Sweeney, 266 A.D.2d at 201, 697 N.Y.S.2d 317;  see also Vehicle and Traffic Law § 1142[a] ).