Opinion
2011-12-6
Tamesgwar BOODLALL, appellant, v. Diana HERRERA, et al., respondents.
Thomas D. Wilson, P.C., Brooklyn, N.Y., for appellant. Brand Glick & Brand, P.C., Garden City, N.Y. (Heather Hammerman of counsel), for respondents.
Thomas D. Wilson, P.C., Brooklyn, N.Y., for appellant. Brand Glick & Brand, P.C., Garden City, N.Y. (Heather Hammerman of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated September 24, 2010, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident is denied.
A driver who has the right-of-way is entitled to anticipate that the other driver will obey traffic laws requiring them to yield to the driver with the right-of-way ( see Vehicle and Traffic Law §§ 1143, 1173; see Sanabria v. Paduch, 61 A.D.3d 839, 876 N.Y.S.2d 874; Mazza v. Manzella, 49 A.D.3d 609, 854 N.Y.S.2d 424; Yasinosky v. Lenio, 28 A.D.3d 652, 812 N.Y.S.2d 367; Ferrara v. Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81; Palumbo v. Holtzer, 235 A.D.2d 409, 652 N.Y.S.2d 98). A driver who has the right-of-way, however, also has a duty to keep a proper lookout to avoid colliding with other vehicles ( see Bonilla v. Calabria, 80 A.D.3d 720, 915 N.Y.S.2d 615; Pena v. Santana, 5 A.D.3d 649, 774 N.Y.S.2d 744). “There can be more than one proximate cause of an accident” ( Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604; see Gardella v. Esposito Foods, Inc., 80 A.D.3d 660, 914 N.Y.S.2d 678).
Here, in support of the motion, the defendants submitted the deposition testimony of the parties, who presented conflicting testimony as to the facts surrounding the accident. Thus, the defendants failed to establish, prima facie, that the plaintiff's alleged negligent operation of his vehicle was the sole proximate cause of the accident ( see generally Bonilla v. Calabria, 80 A.D.3d 720, 915 N.Y.S.2d 615; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861). In light of the defendants' failure to meet their prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).
Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident.