Opinion
No. 2023-04487 Index No. 56468/21
09-25-2024
Flor R. Zapata Ventura, appellant, v. Donna Sturino, respondent.
Law Office of Robert P. Macchia & Associates, PLLC, East Meadow, NY, for appellant. James F. Butler, Jericho, NY (Cristina M. Moreira of counsel), for respondent.
Law Office of Robert P. Macchia & Associates, PLLC, East Meadow, NY, for appellant.
James F. Butler, Jericho, NY (Cristina M. Moreira of counsel), for respondent.
ANGELA G. IANNACCI, J.P. LINDA CHRISTOPHER WILLIAM G. FORD LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated March 24, 2023. The order granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
In February 2020, a vehicle operated by the plaintiff collided with a vehicle operated by the defendant at the intersection of Hillandale Avenue and North Broadway in Westchester County. The plaintiff was traveling on Hillandale Avenue, which was controlled by a stop sign at its intersection with North Broadway. The defendant was traveling on North Broadway, which was not governed by any traffic control device at its intersection with Hillandale Avenue. The plaintiff commenced this action against the defendant to recover damages for personal injuries. The defendant moved for summary judgment dismissing the complaint, contending that the plaintiff's failure to yield the right-of-way was the sole proximate cause of the accident. In an order dated March 24, 2023, the Supreme Court granted the defendant's motion. The plaintiff appeals.
"There can be more than one proximate cause of an accident" (Cox v Nunez, 23 A.D.3d 427, 427). Hence, "[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). "Even though the driver with the right-of-way is entitled to assume that other drivers will obey the traffic laws requiring them to yield, he or she still has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection" (Park v Giunta, 217 A.D.3d 661, 662; see Tornabene v Seickel, 186 A.D.3d 645, 646).
Here, the defendant failed to establish, prima facie, that the plaintiff's failure to yield the right-of-way was the sole proximate cause of the accident and that the defendant exercised reasonable care to avoid the collision with the plaintiff's vehicle (see Ballentine v Perrone, 179 A.D.3d 993, 994; M.M.T. v Relyea, 177 A.D.3d 1013, 1014). The transcripts of the deposition testimony submitted by the defendant in support of her motion failed to eliminate triable issues of fact as to whether the plaintiff's vehicle was already in the intersection before the defendant's vehicle approached the intersection and whether the defendant could have taken measures to avoid the accident (see Tornabene v Seickel, 186 A.D.3d at 646; M.M.T. v Relyea, 177 A.D.3d at 1014). Since the defendant failed to meet her initial burden as the movant, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
IANNACCI, J.P., CHRISTOPHER, FORD and VENTURA, JJ., concur.