Opinion
No. 2023-03810 Index No. 602258/22
05-22-2024
Solange Silva, Respondent-Appellant, v. Janet A. Rabbani, Appellant-Respondent, Heidi S. Resnick, et al., Respondents.
Lawrence & Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for appellant-respondent. Silberstein, Awad & Miklos, P.C., Garden City, NY (Michael D. Schultz of counsel), for respondent-appellant. Sette & Apoznanski, Melville, NY (Patricia McDonagh of counsel), for respondents.
Lawrence & Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Joel A. Sweetbaum], of counsel), for appellant-respondent.
Silberstein, Awad & Miklos, P.C., Garden City, NY (Michael D. Schultz of counsel), for respondent-appellant.
Sette & Apoznanski, Melville, NY (Patricia McDonagh of counsel), for respondents.
COLLEEN D. DUFFY, J.P., ROBERT J. MILLER, HELEN VOUTSINAS, LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Janet A. Rabbani appeals, and the plaintiff cross-appeals, from an order of the Supreme Court, Nassau County (Sarika Kapoor, J.), entered April 5, 2023. The order, insofar as appealed from, denied the motion of the defendant Janet A. Rabbani for summary judgment dismissing the complaint and all cross-claims insofar as asserted against her. The order, insofar as cross-appealed from, denied the plaintiff's cross-motion for summary judgment on the issue of liability and dismissing the defendants' separate affirmative defenses alleging comparative negligence.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying the motion of the defendant Janet A. Rabbani for summary judgment dismissing the complaint and all cross-claims insofar as asserted against her, and substituting therefor a provision granting that motion, and by deleting the provision thereof denying those branches of the plaintiff's cross-motion which were for summary judgment on the issue of liability insofar as asserted against the defendants Heidi S. Resnick and Samuel A. Resnick and dismissing those defendants' affirmative defense alleging comparative negligence, and substituting therefor a provision granting those branches of the cross-motion; as so modified, the order is affirmed insofar as cross-appealed from, with one bill of costs to the plaintiff payable by the defendants Heidi S. Resnick and Samuel A. Resnick, and one bill of costs to the defendant Janet A. Rabbani payable by the plaintiff and the defendants Heidi S. Resnick and Samuel A. Resnick.
The plaintiff commenced this action against to recover damages for injuries she allegedly sustained when a vehicle owned by the defendant Heidi S. Resnick and operated by the defendant Samuel A. Resnick (hereinafter Samuel, and together with Heidi S. Resnick, the Resnick defendants), in which the plaintiff was a backseat passenger, collided with a vehicle driven by the defendant Janet A. Rabbani. Rabbani moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against her. The plaintiff cross-moved for summary judgment on the issue of liability and dismissing the defendants' separate affirmative defenses alleging comparative negligence. By order entered April 5, 2023, the Supreme Court denied the motion and the cross-motion. Rabbani appeals, and the plaintiff cross-appeals.
"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" (Boulos v Lerner-Harrington, 124 A.D.3d 709, 709; see Schmitz v Pinto, 220 A.D.3d 681, 681). Although there may be more than one proximate cause of an accident and proximate cause is generally an issue to be determined by the trier of fact, the "issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts" (Rosa v Gordils, 211 A.D.3d 1060, 1061 [internal quotation marks omitted]; see Howard v Poseidon Pools, 72 N.Y.2d 972, 974).
Vehicle and Traffic Law § 1143 provides that "[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed." "A driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way" (Estate of Cook v Gomez, 138 A.D.3d 675, 677; see Hand v Ridge Volunteer Fire Dept., Inc., 216 A.D.3d 923, 924). Although a driver with a right-of-way must use reasonable care to avoid a collision, a driver with the right-of-way who has "only seconds to react to a vehicle which has failed to yield" cannot be comparatively negligent for failing to avoid the collision (Yelder v Walters, 64 A.D.3d 762, 764; see Hand v Ridge Volunteer Fire Dept., Inc., 216 A.D.3d at 924).
Here, Rabbani established her prima facie entitlement to judgment as a matter of law through the submission of an affidavit and a video of the accident, which demonstrated that Samuel A. Resnick was negligent in making a left turn onto the roadway from a parking lot at a time when it was not reasonably safe to do so. Rabbani's submissions demonstrated that she had the right-of-way as she was traveling on the roadway, she had virtually no time to react to the Resnick defendants' vehicle quickly and unexpectedly crossing her lane of travel, and she was not at fault in the happening of the accident (see Alston v Irizarry, 195 A.D.3d 578, 578-579; Peluso v Martinez, 136 A.D.3d 769, 770; see also Nesbitt v Gallant, 149 A.D.3d 763, 764). In opposition, the plaintiff and the Resnick defendants failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted Rabbani's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against her.
Further, the Supreme Court should have granted those branches of the plaintiff's cross-motion which were for summary judgment on the issue of liability insofar as asserted against the Resnick defendants and dismissing those defendants' affirmative defense alleging comparative negligence. "A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Hart v Chiang, 222 A.D.3d 628, 629 [internal quotation marks omitted]; see Sapienza v Harrison, 191 A.D.3d 1028, 1029). To establish their entitlement to summary judgment on the issue of liability, plaintiffs do not bear the burden of establishing the absence of their own comparative fault (see Rodriguez v City of New York, 31 N.Y.3d 312, 324-325; Shah v MTA Bus Co., 201 A.D.3d 833, 834; Sapienza v Harrison, 191 A.D.3d at 1029). Even though plaintiffs are not required to establish their freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided on summary judgment where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence (see Sapienza v Harrison, 191 A.D.3d at 1029; Higashi v M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 789).
Here, contrary to the Resnick defendants' contention, the motion and the cross-motion were not premature (see CPLR 3212[f]; Romain v City of New York, 177 A.D.3d 590, 592). Further, in support of her cross-motion, the plaintiff incorporated by reference the exhibits submitted by Rabbani on her motion. Thus, contrary to the Supreme Court's determination, the court should have considered the video of the accident and Rabbani's affidavit in determining the cross-motion (see Canty v 133 E. 79th St., LLC, 167 A.D.3d 548, 549; Carey v Five Bros., Inc., 106 A.D.3d 938, 940; Daramboukas v Samlidis, 84 A.D.3d 719, 721).
There is no dispute that the plaintiff was seated in the rear passenger seat of the Resnick defendants' vehicle and, in their respective affidavits, neither Rabbani nor Samuel suggested that the plaintiff bore any fault in the happening of the accident (see Romain v City of New York, 177 A.D.3d at 591). On this record, the plaintiff established, prima facie, that the Resnick defendants owed her a duty and their negligence was a proximate cause of her alleged injuries (see generally Hart v Chiang, 222 A.D.3d at 629), and that the plaintiff was an innocent passenger who did not proximately cause the accident (see Higashi v M & R Scarsdale Rest., LLC, 176 A.D.3d at 790; see also Morris v Dorota, 187 A.D.3d 1174; Romain v City of New York, 177 A.D.3d at 591). In opposition, the Resnick defendants failed to raise a triable issue of fact.
DUFFY, J.P., MILLER, VOUTSINAS and LOVE, JJ., concur.