Opinion
05-10-2017
Deidre WHITE, plaintiff-respondent, v. ADOM RENTAL TRANSPORTATION, INC., et al., defendants-respondents, Kingsley Bernard, et al., appellants.
Deidre Tobin, Garden City, N.Y. (Louis T. Cornacchia of counsel), for appellants.
Deidre Tobin, Garden City, N.Y. (Louis T. Cornacchia of counsel), for appellants.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the defendants Kingsley Bernard and Alicia Bernard appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Toussaint, J.), dated August 4, 2015, as denied that branch of their cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the issue of liability.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff allegedly sustained injuries when she was a passenger in a cab that collided with a van at the intersection of Lexington Avenue and Reid Avenue in Brooklyn, which was governed by a traffic light. The plaintiff commenced this action against the owner and operator of the cab, and the owner and operator of the van, Kingsley Bernard and Alicia Bernard, respectively (hereinafter the Bernard defendants). The Bernard defendants cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, contending, inter alia, that they were not at fault in the happening of the accident because the operator of the cab entered the intersection against a red light, which was the sole proximate cause of the accident. The Supreme Court denied that branch of the cross motion.
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 (see Hurst v. Belomme, 142 A.D.3d 642, 36 N.Y.S.3d 735 ; Boulos v. Lerner–Harrington, 124 A.D.3d 709, 2 N.Y.S.3d 526 ). There can be more than one proximate cause of an accident (see Lukyanovich v. H.L. General Contrs., Inc., 141 A.D.3d 693, 35 N.Y.S.3d 463 ; Steiner v. Dincesen, 95 A.D.3d 877, 943 N.Y.S.2d 585 ; Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604 ), and "[g]enerally, it is for the trier of fact to determine the issue of proximate cause" (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ). A driver who enters an intersection against a red light in violation of Vehicle and Traffic Law § 1111(d) is negligent as a matter of law (see Joaquin v. Franco, 116 A.D.3d 1009, 1010, 985 N.Y.S.2d 131 ). While an operator of a motor vehicle traveling with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield, the operator traveling with the right-of-way still 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 Winner v. Star Cruiser Transp., Inc., 95 A.D.3d 1109, 944 N.Y.S.2d 297 ; Steiner v. Dincesen, 95 A.D.3d at 877, 943 N.Y.S.2d 585 ; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 ).
Here, in support of that branch of their cross motion which was for summary judgment dismissing the complaint and cross claims against them on the issue of liability, the Bernard defendants submitted, inter alia, the deposition testimony of the plaintiff and Alicia Bernard, which provided conflicting evidence as to the facts surrounding the accident, and they failed to establish, prima facie, that Alicia Bernard was not at fault in the happening of the accident (see Antaki v. Mateo, 100 A.D.3d 579, 580, 954 N.Y.S.2d 540 ; Steiner v. Dincesen, 95 A.D.3d at 878, 943 N.Y.S.2d 585 ). Since the Bernard defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the opposition papers.
Accordingly, the Supreme Court properly denied that branch of the Bernard defendants' motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the issue of liability.