Opinion
2013-01-30
Farruh SOIBOV, etc., respondent, v. Kenneth P. PALMER, et al., appellants, et al., defendant.
Litchfield Cavo LLP, New York, N.Y. (Victor A. Vincenzi of counsel), for appellants. Wingate Russotti & Shapiro LLP, New York, N.Y. (David M. Schwarz of counsel), for respondent.
Litchfield Cavo LLP, New York, N.Y. (Victor A. Vincenzi of counsel), for appellants. Wingate Russotti & Shapiro LLP, New York, N.Y. (David M. Schwarz of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Kenneth P. Palmer and Glass Gardens, Inc., doing business as Shop Rite of Rochelle Park, appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 2, 2011, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
The instant action arises out of a collision between a bicyclist and a motorist that occurred at around 8:30 p.m. on an April evening. The moving defendants contend that the sole proximate cause of the accident was the plaintiff bicyclist's failure to have a headlight on his bicycle ( seeVehicle and Traffic Law § 1236[a] ), and failure to yield the right of way ( seeVehicle and Traffic Law § 1143). However, there can be more than one proximate cause of an accident ( see Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604;Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365). Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether the plaintiff entered the intersection before the defendant driver, whether it was the defendant driver who failed to yield the right of way, and whether the defendant driver failed to see that which through proper use of his senses he should have seen ( see Matamoro v. City of New York, 94 A.D.3d 722, 722–723, 941 N.Y.S.2d 684;Tapia v. Royal Tours Serv., Inc., 67 A.D.3d 894, 896, 889 N.Y.S.2d 225). Accordingly, the Supreme Court properly denied the moving defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.