Opinion
No. 2019-12402 Index No. 602803/16
01-12-2022
Shannon Wiessner, appellant, v. Brittany Phillips, respondent.
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, NY (Michael E. Bergman, Julie T. Mark, and Clifford D. Gabel of counsel), for appellant. Michael G. Nashak (Law Offices of Curtis, Vasile, Mehary & Dorry P.C., Merrick, NY [Patricia M. D'Antone], of counsel), for respondent.
Argued - November 9, 2021
Bergman, Bergman, Fields & Lamonsoff, LLP, Hicksville, NY (Michael E. Bergman, Julie T. Mark, and Clifford D. Gabel of counsel), for appellant.
Michael G. Nashak (Law Offices of Curtis, Vasile, Mehary & Dorry P.C., Merrick, NY [Patricia M. D'Antone], of counsel), for respondent.
MARK C. DILLON, J.P. BETSY BARROS PAUL WOOTEN JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered October 3, 2019. 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.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she was struck by the defendant's vehicle as she walked across a street in Cobleskill. The defendant moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiff appeals.
"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; see King v Perez, 160 A.D.3d 708). "A driver is bound to see what is there to be seen with the proper use of his [or her] senses" (Topalis v Zwolski, 76 A.D.3d 524, 525; see Higashi v M&R Scarsdale Rest., LLC, 176 A.D.3d 788, 790; Brandt v Zahner, 110 A.D.3d 752). There can be more than one proximate cause of an accident (see Cox v Nunex, 23 A.D.3d 427), and the issue of comparative negligence is generally a question for the jury to decide (see Spadaro v Parking Sys. Plus, Inc., 113 A.D.3d 833, 835; Jahangir v Logan Bus Co., Inc., 89 A.D.3d 1064).
Here, in support of her motion, the defendant submitted, inter alia, the deposition testimony of the parties, which provided conflicting evidence as to the facts surrounding the incident. Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party (see Stukas v Streiter, 83 A.D.3d 18, 22), the defendant failed to establish, prima facie, that she was not at fault in the happening of the incident (see generally Joseph v Kelly, 178 A.D.3d 1028, 1030; Qi-Wen Pan v Lall, 174 A.D.3d 930, 931).
Accordingly, the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint without regard to the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
DILLON, J.P, BARROS, WOOTEN and ZAYAS, JJ, concur