ANTAKI v. (and a third-party action). (2012)

In an action, inter alia, to recover damages for wrongful death, etc., the defendants Ramiro Mateo and KilKenny Construction Co., Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), dated January 19, 2012, as denied that branch of their cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

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

In this case arising out of an automobile accident, the defendants Ramiro Mateo and KilKenney Construction Co., Inc. (hereinafter the appellants), cross-moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. In support of their cross motion, the appellants made a prima facie showing that Mateo entered the intersection where the accident occurred with a green light. Mateo thus had the right-of-way, and was entitled to anticipate that the driver of the vehicle he collided with would obey traffic laws which required her to yield (see Vehicle and Traffic Law § 1111[d]; Cox v. Weil, 66 A.D.3d 634, 635, 887 N.Y.S.2d 170; see also Simmons v. Canady, 95 A.D.3d 1201, 1202, 945 N.Y.S.2d 138). However, there can be more than one proximate cause of an accident, and thus the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law (see Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282; Tapia v. Royal Tours Serv., Inc., 67 A.D.3d 894, 896, 889 N.Y.S.2d 225; Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389). Here, in support of that branch of their cross motion which was for summary judgment, the appellants submitted evidence which included statements by eyewitnesses, verified pursuant to Penal Law § 210.45, which were the equivalent of statements made under oath (see People v. Sullivan, 56 N.Y.2d 378, 384, 452 N.Y.S.2d 373, 437 N.E.2d 1130; Moore v. County of Suffolk, 11 A.D.3d 591, 592, 783 N.Y.S.2d 72). The eyewitness statements raised triable issues of fact as to whether Mateo contributed to the happening of the accident by, inter alia, driving at an excessive rate of speed (see Calcano v. Rodriguez, 91 A.D.3d 468, 936 N.Y.S.2d 185; Franzese v. Consolidated Dairies, Inc., 83 A.D.3d 775, 920 N.Y.S.2d 688; Bonilla v. Gutierrez, 81 A.D.3d 581, 582, 915 N.Y.S.2d 634; Sirot v. Troiano, 66 A.D.3d 763, 764, 886 N.Y.S.2d 504). Since the appellants' own submissions failed to eliminate all triable issues of fact as to whether Mateo was free from comparative negligence, the Supreme Court properly denied that branch of their cross motion which was for summary judgment without considering the plaintiff's papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Pollack v. Margolin, 84 A.D.3d at 1342, 924 N.Y.S.2d 282).