Opinion
09-28-2016
Nankumarie GOBIN, et al., appellants, v. Brenda Y. DELGADO, respondent.
Michael Manoussos & Co., PLLC, Kew Gardens, NY (Adam Nichols of counsel), for appellants. Mendolia & Stenz (Russo & Tambasco, Melville, NY [Yamile Al–Sullami and Melissa Marano], of counsel), for respondent.
Michael Manoussos & Co., PLLC, Kew Gardens, NY (Adam Nichols of counsel), for appellants.
Mendolia & Stenz (Russo & Tambasco, Melville, NY [Yamile Al–Sullami and Melissa Marano], of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, BETSY BARROS, and FRANCESCA E. CONNOLLY, JJ.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), entered September 11, 2015, as granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
On August 23, 2013, a vehicle owned and operated by the defendant allegedly struck a vehicle operated by the plaintiff Nankumarie Gobin (hereinafter the injured plaintiff) and owned by the plaintiff Jeewan Gobin. The plaintiffs commenced this action against the defendant to recover damages for personal injuries and injury to property arising from the accident.
According to the injured plaintiff's deposition testimony, she was traveling westbound on Hempstead Turnpike and was preparing to make a left turn onto Warwick Road. While the intersection of Warwick Road and Hempstead Turnpike (hereinafter the Warwick intersection) is not controlled by a traffic light, the intersection of Hempstead Turnpike and Sterling Road (hereinafter the Sterling intersection), the next intersection to the west, is controlled by a traffic light. The injured plaintiff testified that she observed that the defendant's car was traveling eastbound on Hempstead Turnpike and was stopped at a red light at the Sterling intersection. According to the injured plaintiff, as she turned left onto Warwick Road, the defendant proceeded through the red light at the Sterling intersection and struck the injured plaintiff's vehicle. The injured plaintiff testified that she was 10 feet into her turn when the defendant's vehicle struck her.
By contrast, the defendant testified at her deposition that she passed through the Sterling intersection while the light was green, i.e., that she did not run a red light, and that the injured plaintiff's vehicle turned left and collided with her vehicle when the defendant had the right of way. The defendant testified that “[a] few seconds” elapsed between the time that the injured plaintiff turned and when the two vehicles collided.
The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint. We reverse.
“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, 2 N.Y.S.3d 526 ; see
Estate of Cook v. Gomez, 138 A.D.3d 675, 30 N.Y.S.3d 148 ; Baulete v. L & N Car Serv., Inc., 134 A.D.3d 753, 22 N.Y.S.3d 86 ). “There can be more than one proximate cause of an accident” (Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604 ), and “ [g]enerally, it is for the trier of fact to determine the issue of proximate cause” (Estate of Cook v. Gomez, 138 A.D.3d at 675, 30 N.Y.S.3d 148, quoting Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ).
Pursuant to Vehicle and Traffic Law § 1141, the operator of a vehicle intending to turn left within an intersection must yield the right-of-way to any oncoming vehicle which is within the intersection or so close to it as to constitute an immediate hazard (see Attl. v. Spetler, 137 A.D.3d 1176, 28 N.Y.S.3d 699 ; Foley v. Santucci, 135 A.D.3d 813, 23 N.Y.S.3d 338 ). A violation of this statute constitutes negligence per se (see Katikireddy v. Espinal, 137 A.D.3d 866, 867, 26 N.Y.S.3d 775 ; Vainer v. DiSalvo, 79 A.D.3d 1023, 1024, 914 N.Y.S.2d 236 ). The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law (see Attl v. Spetler, 137 A.D.3d at 1176, 28 N.Y.S.3d 699 ; Arias v. Tiao, 123 A.D.3d 857, 858, 1 N.Y.S.3d 133 ). A driver is negligent where he or she failed to see that which, through proper use of his or her senses, he or she should have seen (see Arias v. Tiao, 123 A.D.3d at 858, 1 N.Y.S.3d 133 ; Rodriguez v. Klein, 116 A.D.3d 939, 983 N.Y.S.2d 851 ). The driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident (see Arias v. Tiao, 123 A.D.3d at 858, 1 N.Y.S.3d 133 ; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 ; see also Regans v. Baratta, 106 A.D.3d 893, 893, 965 N.Y.S.2d 171 ; Simmons v. Canady, 95 A.D.3d 1201, 1202, 945 N.Y.S.2d 138 ).
On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 ). Here, the parties' conflicting deposition testimony submitted by the defendant in support of her motion failed to eliminate triable issues of fact as to whether the defendant was free from fault in the happening of the accident and, if not, whether the injured plaintiff's negligence was the sole proximate cause of the accident (see Cabrera v. Magussen, 130 A.D.3d 664, 11 N.Y.S.3d 862 ; Lorentz v. Ruiz, 129 A.D.3d 795, 11 N.Y.S.3d 246 ). Since the defendant failed to demonstrate her prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied her motion, regardless of the sufficiency of the plaintiffs' 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 ).