Opinion
February 11, 1999
Appeal from the Supreme Court (Keegan, J.).
On August 21, 1995 plaintiff was injured when his motorcycle collided with an automobile driven by defendant Geoffrey M. Inget. At the time of the accident, plaintiff was proceeding westbound in the right lane of Western Avenue in the City of Albany. Inget, who was traveling eastbound on Western Avenue, struck plaintiff's motorcycle while attempting a left turn across the westbound lanes into a service station. Employees of defendant Callanan Industries, Inc. were in the process of repaving the westbound lanes of Western Avenue approximately 500 feet west of the accident site and had closed the right lane to traffic. Callanan moved for summary judgment which was granted by Supreme Court. Plaintiff appeals.
Plaintiff testified in his deposition that as he was traveling in the right westbound lane at approximately 12 to 15 miles per hour and planning to merge into the left lane due to the lane closure, he was struck by Inget's automobile. He indicated that he was aware of the construction work being performed and had observed cones and signs advising westbound motorists of a right lane closure approximately 100 yards beyond the location of the accident. During his deposition, Inget, who was proceeding eastbound in the left lane, claimed he came to a complete stop while waiting to make a left turn. He testified that he then attempted to cross the westbound lanes after another westbound driver gestured for him to proceed. Inget acknowledged that he struck the left side of plaintiff's motorcycle when proceeding across the right westbound lane. Although Inget stated that his only visual obstruction was, an automobile stopped in the left westbound lane, he nevertheless did not see plaintiff until a "split, second" before impact. Representatives of Callanan testified that warning signs were placed at intervals approximately 1,500, 1,000 and 500 feet from the work area to advise drivers of the construction and approaching lane merger. They also testified that there were no prior problems, complaints or accidents during the repaving project and that they acted in accordance with proper rules and procedures.
It is axiomatic that once a movant for summary judgment makes a "prima facie showing of entitlement to judgment as a matter of law", the nonmoving party must submit admissible evidence demonstrating a triable issue of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Zuckerman v. City of New York, 49 N.Y.2d 557; State of New York v. Hiller, 250 A.D.2d 953, 954-955; Hasbrouck v. City of Gloversville, 102 A.D.2d 905, aff'd 63 N.Y.2d 916). Plaintiff primarily contends that Callanan was negligent in its failure to properly control traffic and provide adequate warning signs of the lane closure. We conclude, however, after viewing the evidence in a light most favorable to plaintiff (see, Bush v. Lamb-Grays Harbor Co., 246 A.D.2d 768, 771; Bershaw v. Altman, 100 A.D.2d 642, 643), that there are no triable issues of fact.
Although we recognize that there may be more than one proximate cause of an accident, even assuming arguendo that Callanan's actions constituted negligence, they were not a proximate cause of the accident (see, Margolin v. Friedman, 43 N.Y.2d 982, 983; Morales v. Lia, 238 A.D.2d 786; Hopping v. Connors, 220 A.D.2d 957, lv denied 87 N.Y.2d 811; Daversa v. Harris, 167 A.D.2d 810; Rogers v. Huggins, 106 A.D.2d 621). Rather, it is clear that the sole proximate cause of plaintiff's injuries was Inget's failure to yield the right-of-way to oncoming traffic (see, Hersman v. Hadley, 235 A.D.2d 714, 718, lv denied 90 N.Y.2d 802; Peck v. Dygon, 224 A.D.2d 744; Halsey v. County of Madison, 215 A.D.2d 824). Moreover, both Inget and plaintiff testified that they were familiar with the construction work being performed (cf., Boucher v. Town of Candor, 234 A.D.2d 669) and did not indicate that it even remotely affected their ability to proceed safely. Eased on the fact that there is no evidentiary foundation to suggest that Callanan's actions were a substantial cause of the accident, Supreme Court's award of summary judgment in Callanan's favor will not be disturbed.
Cardona, P. J., Mercure, Yesawich Jr. and Carpinello, JJ., concur.
Ordered that the order is affirmed, with costs.