Opinion
2022–05185 Index No. 152074/20
12-20-2023
Waqqas KHALIL, appellant, v. Marcos M. GARCIA–OLEA, respondent.
Mallilo & Grossman, Flushing, NY (Gary Caliendo of counsel), for appellant. Kelly, Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for respondent.
Mallilo & Grossman, Flushing, NY (Gary Caliendo of counsel), for appellant.
Kelly, Rode & Kelly, LLP, Mineola, NY (Eric P. Tosca of counsel), for respondent.
ANGELA G. IANNACCI, J.P., LARA J. GENOVESI, HELEN VOUTSINAS, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated June 21, 2022. 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.
On July 15, 2020, the plaintiff bicyclist collided with the defendant's vehicle within a crosswalk. The plaintiff was cycling across the street in a northerly direction. The defendant's vehicle, which was traveling in a southerly direction, was making a right turn at the intersection. The plaintiff's bicycle, which was approximately halfway across the intersection, collided with the rear portion of the defendant's vehicle, which was still in the crosswalk, striking the driver's side rear tail light.
The plaintiff subsequently commenced this personal injury action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending that he was not at fault in the happening of the accident. In an order dated June 21, 2022, the Supreme Court granted the defendant's motion. 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, 2 N.Y.S.3d 526 ; see Sage v. Taylor, 195 A.D.3d 971, 972, 146 N.Y.S.3d 496 ). "There can be more than one proximate cause of an accident, and [g]enerally, it is for the trier of fact to determine the issue of proximate cause" ( Chan Pok Kim v. Jurado, 203 A.D.3d 694, 695, 160 N.Y.S.3d 635 [citations and internal quotation marks omitted]; see Nunez v. Olympic Fence & Railing Co., Inc., 138 A.D.3d 807, 809, 29 N.Y.S.3d 546 ; Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 620, 959 N.Y.S.2d 270 ).
"Pursuant to Vehicle and Traffic Law § 1231, a person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself into a dangerous position" ( Sturm v. Chaudhary, 210 A.D.3d 927, 927, 176 N.Y.S.3d 798 ; see Palma v. Sherman, 55 A.D.3d 891, 891, 867 N.Y.S.2d 111 ). Pursuant to Vehicle and Traffic Law § 1146(a), motorists must "exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal" on the roadway and to "give warning by sounding the horn when necessary" (see Ballentine v. Perrone, 179 A.D.3d 993, 994, 114 N.Y.S.3d 696 ; Espiritu v. Shuttle Express Coach, Inc., 115 A.D.3d 787, 789, 982 N.Y.S.2d 155 ). A motorist also has a "common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses" ( Lieb v. Jacobson, 202 A.D.3d 1072, 1073, 163 N.Y.S.3d 586 ; see Kruter v. United Parcel Serv. Gen. Servs. Co., 210 A.D.3d 671, 672, 177 N.Y.S.3d 692 ). Here, the defendant, who submitted the transcripts of his and the plaintiff's deposition testimony, failed to establish, prima facie, that his conduct was not a proximate cause of the accident. The defendant testified at his deposition that he slowly made his turn, and that he did not see the plaintiff prior to the impact. The plaintiff testified at his deposition that he saw the defendant's vehicle make a sudden right turn in front of him one second prior to the impact. Thus, the defendant's own submissions raised triable issues of fact as to whether the defendant failed to see what was there to be seen through the proper use of his senses (see Gonzalez v. Gonzales, 212 A.D.3d 716, 717, 183 N.Y.S.3d 113 ; Palmeri v. Erricola, 122 A.D.3d 697, 698, 996 N.Y.S.2d 193 ), and failed to exercise due care to avoid the collision (see Vehicle and Traffic Law § 1146[a] ; Gonzalez v. Gonzales, 212 A.D.3d at 717, 183 N.Y.S.3d 113 ).
The defendant's remaining contention is without merit.
Since the defendant did not meet his prima facie burden, the Supreme Court should have denied his 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, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
IANNACCI, J.P., GENOVESI, VOUTSINAS and TAYLOR, JJ., concur.