Supreme Court, Appellate Division, Second Department, New York.
Elizabeth PIAZZA, et al., appellants, v. Gary R. CLINE, respondent.
Decided: May 23, 2018
CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
Jonathan D'Agostino, Staten Island, N.Y. (Glen Devora of counsel), for appellants. Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum and Jackie Gross], of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Charles M. Troia, J.), dated November 18, 2016. The order 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.
On the morning of October 30, 2013, a mini school bus on which the injured plaintiff, a school bus matron, was a passenger, collided with the defendant's vehicle at the intersection of Preston Avenue and Oakdale Street in Richmond County. The school bus was traveling southbound on Preston Avenue, which was governed by a stop sign at its intersection with Oakdale Street. The defendant's vehicle was traveling westbound on Oakdale Street, which was not governed by any traffic control device at its intersection with Preston Avenue. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending that the bus driver's failure to yield the right-of-way was the sole proximate cause of the accident. The Supreme Court granted the motion, and the plaintiffs appeal.
The defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that the bus driver was negligent in failing to yield the right-of-way, and that the defendant was not at fault in the happening of the accident (see Fuertes v. City of New York, 146 A.D.3d 936, 937, 45 N.Y.S.3d 562; Wolf v. Cruickshank, 144 A.D.3d 1144, 1145, 41 N.Y.S.3d 754; Nohs v. DiRaimondo, 140 A.D.3d 1132, 1134, 35 N.Y.S.3d 209; Luke v. McFadden, 119 A.D.3d 533, 534, 987 N.Y.S.2d 909). However, in opposition, the plaintiffs submitted a copy of the injured plaintiff's deposition transcript, which raised triable issues of fact as to, among other things, whether the defendant was at fault in the happening of the accident (see Anastasi v. Terio, 84 A.D.3d 992, 924 N.Y.S.2d 424; Wilson v. Rosedom, 82 A.D.3d 970, 919 N.Y.S.2d 59; Virzi v. Fraser, 51 A.D.3d 784, 858 N.Y.S.2d 676).
Accordingly, we disagree with the Supreme Court's determination granting the defendant's motion for summary judgment dismissing the complaint.
CHAMBERS, J.P., HINDS–RADIX, DUFFY and LASALLE, JJ., concur.
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