Opinion
12-07-2016
Marilyn TAYLOR, appellant, v. BRAT AUTO SALES, LTD., et al., respondents.
Arze & Mollica, LLP, Brooklyn, NY (Raymond J. Mollica of counsel), for appellant. Gannon, Rosenfarb & Drossman, New York, NY (Lisa L. Gokhulsingh of counsel), for respondents.
Arze & Mollica, LLP, Brooklyn, NY (Raymond J. Mollica of counsel), for appellant.
Gannon, Rosenfarb & Drossman, New York, NY (Lisa L. Gokhulsingh of counsel), for respondents.
RUTH C. BALKIN, J.P., THOMAS A. DICKERSON, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Walker, J.), dated September 18, 2015, which denied her motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
On May 21, 2014, at approximately 4:30 p.m., a vehicle operated by the plaintiff and a vehicle operated by the defendant Richard V. Bruno, which was owned by the defendant Brat Auto Sales, Ltd., collided on Bath Avenue, at its intersection with Bay 11th Street, in Brooklyn. At the time of the subject accident, the plaintiff was driving on Bath Avenue and the defendants' vehicle was traveling on Bay 11th Street. At the intersection, Bath Avenue was not governed by any traffic control devices, while Bay 11th Street was controlled by a stop sign. The plaintiff subsequently commenced this action against the defendants, alleging that due to the defendants' negligence, she sustained personal injuries. The plaintiff moved for summary judgment on the issue of liability, and the Supreme Court denied the motion. We affirm.
While an operator of a motor vehicle traveling with the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield (see McPherson v. Chanzeb, 123 A.D.3d 1098, 1099, 999 N.Y.S.2d 521 ; Rodriguez v. Klein, 116 A.D.3d 939, 983 N.Y.S.2d 851 ), the driver with the right-of-way nonetheless also has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles (see Twizer v. Lavi, 140 A.D.3d 736, 33 N.Y.S.3d 351 ; Mu–Jin Chen v. Cardenia, 138 A.D.3d 1126, 1129, 31 N.Y.S.3d 134 ; Arias v. Tiao, 123 A.D.3d 857, 858, 1 N.Y.S.3d 133 ; Bennett v. Granata, 118 A.D.3d 652, 653, 987 N.Y.S.2d 424 ; Regans v. Baratta, 106 A.D.3d 893, 965 N.Y.S.2d 171 ; Winner v. Star Cruiser Transp., Inc., 95 A.D.3d 1109, 1109, 944 N.Y.S.2d 297 ; 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 ; see also Simmons v. Canady, 95 A.D.3d 1201, 1202, 945 N.Y.S.2d 138 ). There can be more than one proximate cause of a motor vehicle accident and, thus, “a plaintiff moving for summary judgment on the issue of liability in an action alleging negligence must establish, prima facie, not only that the defendant was negligent but that the plaintiff was free from comparative fault” (Adams v. Bruno, 124 A.D.3d 566, 567, 1 N.Y.S.3d 280 ). The issue of comparative fault is generally a question for the trier of fact (see Allen v. Echols, 88 A.D.3d 926, 927, 931 N.Y.S.2d 402 ; Wilson v. Rosedom, 82 A.D.3d 970, 919 N.Y.S.2d 59 ).
Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, as her submissions were insufficient to eliminate all triable issues of fact as to whether she contributed to the happening of the accident (see Regans v. Baratta, 106 A.D.3d 893, 965 N.Y.S.2d 171 ; Simmons v. Canady, 95 A.D.3d 1201, 945 N.Y.S.2d 138 ). Since the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied her motion for summary judgment on the issue of liability, regardless of the sufficiency of the defendants' 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 ).