Opinion
2012-07-25
Esin COLPAN, respondent, v. ALLIED CENTRAL AMBULETTE, INC., et al., appellants.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and Gregory S. Katz of counsel), for appellants. Gardiner & Nolan, Brooklyn, N.Y. (Thomas J. Nolan of counsel), for respondent.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and Gregory S. Katz of counsel), for appellants. Gardiner & Nolan, Brooklyn, N.Y. (Thomas J. Nolan of counsel), for respondent.
WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much an order of the Supreme Court, Kings County (Lewis, J.), dated September 16, 2011, as granted that branch of the plaintiff's motion which was for leave to reargue her opposition to their prior motion for summary judgment dismissing the complaint, which had been granted in an order of the same court dated June 3, 2011, and upon reargument, vacated so much of the order dated June 3, 2011, as granted their prior motion, and thereupon denied their prior motion.
ORDERED that the order dated September 16, 2011, is affirmed insofar as appealed from, with costs.
Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue ( see Shields v. Kleiner, 93 A.D.3d 710, 940 N.Y.S.2d 134;Fung v. Uddin, 60 A.D.3d 992, 876 N.Y.S.2d 469).
A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law ( see Vainer v. DiSalvo, 79 A.D.3d 1023, 914 N.Y.S.2d 236;Botero v. Erraez, 289 A.D.2d 274, 734 N.Y.S.2d 565;Ferrara v. Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81;Packer v. Mirasola, 256 A.D.2d 394, 681 N.Y.S.2d 559). Moreover, under the common law, a driver is bound to see what is there to be seen through the proper use of his or her senses ( see Matamoro v. City of New York, 94 A.D.3d 722, 941 N.Y.S.2d 684;Wilson v. Rosedom, 82 A.D.3d 970, 919 N.Y.S.2d 59;Topalis v. Zwolski, 76 A.D.3d 524, 525, 906 N.Y.S.2d 317;Gonzalez v. County of Suffolk, 277 A.D.2d 350, 716 N.Y.S.2d 404), and is negligent for the failure to do so ( see Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861).
“ ‘There can be more than one proximate cause of an accident’ ” ( Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389, quoting Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604;see Allen v. Echols, 88 A.D.3d 926, 927, 931 N.Y.S.2d 402). As a result, “the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” ( Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282;see Gardella v. Esposito Foods, Inc., 80 A.D.3d 660, 660, 914 N.Y.S.2d 678). “[T]he issue of comparative fault is generally a question for the trier of fact” ( Allen v. Echols, 88 A.D.3d at 927, 931 N.Y.S.2d 402).
The defendants correctly contend that the plaintiff was negligent as a matter of law in operating her bicycle in violation of Vehicle and Traffic Law § 1127. However, on their motion the defendants failed to establish, prima facie, that the plaintiff's negligence was the sole proximate cause of the subject collision. Here, although the vehicle operated by the defendant Craig D. Frazier (hereinafter the defendant driver) had the right-of-way and was entitled to anticipate that the plaintiff would obey the traffic laws, the defendant driver also had a duty to exercise due care to avoid colliding with the plaintiff, a bicyclist ( seeVehicle and Traffic Law § 1146[a] ). The transcripts of the deposition testimony of both the defendant driver and of the plaintiff, which were submitted in support of the defendants' motion for summary judgment dismissing the complaint, raised triable issues of fact as to whether the defendant driver was negligent in violating Vehicle and Traffic Law § 1146(a), and whether he failed to see what was there to be seen through the proper use of his senses. The defendant driver admitted that he did not see the plaintiff until the point of impact, despite the fact that he stopped for “seconds” at the subject intersection before turning left.