ELKHOLY v. DAWKINS (2019)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

On May 26, 2015, the plaintiff allegedly was injured when the bicycle he was riding came into contact with a motor vehicle owned and operated by the defendant.  The collision occurred at the intersection of West End Avenue and West 71st Street in Manhattan as both parties were attempting to make a left turn onto West End Avenue.  The plaintiff's bicycle came into contact with the rear driver's side of the defendant's vehicle while the defendant's vehicle was positioned at an angle.  The plaintiff and defendant each testified at their respective depositions that they did not observe the other party prior to the collision.  The defendant moved for summary judgment dismissing the complaint.  In the order appealed from, the Supreme Court denied the defendant's motion.  The defendant appeals.

“A driver is bound to see what is there to be seen with the proper use of his senses, and there can be more than one proximate cause of an accident” (Topalis v. Zwolski, 76 A.D.3d 524, 525, 906 N.Y.S.2d 317 [citations omitted]; see Ellis v. Vazquez, 155 A.D.3d 694, 695, 63 N.Y.S.3d 530).  “In order for a defendant driver to establish entitlement to summary judgment on the issue of liability in a motor vehicle collision case, the driver must demonstrate, prima facie, inter alia, that he or she kept the proper lookout, or that his or her alleged negligence, if any, did not contribute to the accident” (Ellis v. Vazquez, 155 A.D.3d at 695, 63 N.Y.S.3d 530).

Here, contrary to the defendant's contention, he failed to establish his prima facie entitlement to judgment as a matter of law.  In support of his motion, the defendant submitted the deposition transcripts of both parties, which failed to eliminate triable issues of fact as to whether the defendant kept a proper lookout and exercised reasonable care to avoid a collision with the plaintiff's bicycle (see Ellis v. Vazquez, 155 A.D.3d at 695, 63 N.Y.S.3d 530; Rojas v. Solis, 154 A.D.3d 985, 986, 62 N.Y.S.3d 511; Palmeri v. Erricola, 122 A.D.3d 697, 698, 996 N.Y.S.2d 193; see also Hurst v. Belomme, 142 A.D.3d 642, 643, 36 N.Y.S.3d 735).  Accordingly, since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court's determination denying his motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's 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).

CHAMBERS, J.P., ROMAN, COHEN and DUFFY, JJ., concur.