MATIAS v. BELLO (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered November 3, 2016.  The order, insofar as appealed from, denied the defendants' motion for summary judgment dismissing the complaint.

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

The plaintiff allegedly was injured when the vehicle she was operating collided with a vehicle owned by the defendant Reaper Trucking, Inc., and operated by the defendant Ann E. Bello.  The collision occurred as each driver attempted to make a left turn from adjacent lanes of Second Avenue onto East 59th Street in Manhattan.  Each driver claimed that the other driver's turn was not made from a permissible lane.  The defendants moved for summary judgment dismissing the complaint.  In the order appealed from, the Supreme Court, inter alia, denied the defendants' motion.

A defendant 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 (see Hurst v. Belomme, 142 A.D.3d 642, 36 N.Y.S.3d 735;  Boulos v. Lerner–Harrington, 124 A.D.3d 709, 2 N.Y.S.3d 526).  There can be more than one proximate cause of an accident (see Lukyanovich v. H.L. Gen. Contrs., Inc., 141 A.D.3d 693, 35 N.Y.S.3d 463;  Steiner v. Dincesen, 95 A.D.3d 877, 943 N.Y.S.2d 585).  Generally, it is for the trier of fact to determine the issue of proximate cause (see White v. Adom Rental Transp., Inc., 150 A.D.3d 938).  A driver who violates the Vehicle and Traffic Law may be found negligent as a matter of law (see Joaquin v. Franco, 116 A.D.3d 1009, 985 N.Y.S.2d 131).  Although a motor vehicle driver traveling with the right-of-way is entitled to assume that other drivers will obey the traffic laws, the driver traveling with the right-of-way still has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles (see Winner v. Star Cruiser Transp., Inc., 95 A.D.3d 1109, 944 N.Y.S.2d 297;  Steiner v. Dincesen, 95 A.D.3d at 877, 943 N.Y.S.2d 585).

Here, in support of their motion for summary judgment, the defendants submitted the deposition testimony of the plaintiff and Bello.  Those submissions provided conflicting evidence as to the facts surrounding the accident and failed to establish, prima facie, that Bello was not at fault in the happening of the accident (see White v. Adom Rental Transp., Inc, 150 A.D.3d 938, 54 N.Y.S.3d 98;  Antaki v. Mateo, 100 A.D.3d 579, 954 N.Y.S.2d 540;  Allen v. Echols, 88 A.D.3d 926, 931 N.Y.S.2d 402;  Pollack v. Margolin, 84 A.D.3d 1341, 924 N.Y.S.2d 282).  Since the defendants failed to meet their initial burden as the proponents of summary judgment motion, it is not necessary to review the sufficiency of the opposition papers (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).

Accordingly, we agree with the Supreme Court's determination to deny the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., MILLER, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.