Opinion
No. 2021-01144 Index No. 614203/17
05-03-2023
Pragna Mehta, respondent, v. Doreen Keaveney, appellant.
Baxter Smith & Shapiro, P.C., Hicksville, NY (Margot L. Ludlam and Patrick Thompson of counsel), for appellant. Cassisi & Cassisi, P.C. (Lynn Gartner Dunne, LLP, Mineola, NY [Kenneth L. Gartner], of counsel), for respondent.
Baxter Smith & Shapiro, P.C., Hicksville, NY (Margot L. Ludlam and Patrick Thompson of counsel), for appellant.
Cassisi & Cassisi, P.C. (Lynn Gartner Dunne, LLP, Mineola, NY [Kenneth L. Gartner], of counsel), for respondent.
COLLEEN D. DUFFY, J.P. CHERYL E. CHAMBERS LINDA CHRISTOPHER JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), dated January 25, 2021. The order denied the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when she was struck by the defendant's vehicle while walking across Hillside Avenue in New Hyde Park. The defendant moved for summary judgment dismissing the complaint. In an order dated January 25, 2021, the Supreme Court denied the defendant's motion. The defendant 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 McPhaul-Guerrier v Leppla, 201 A.D.3d 920, 921). "A driver is negligent where he or she failed to see that which, through proper use of his or her senses, the driver should have seen" (Shuofang Yang v Sanacore, 202 A.D.3d 1120, 1122; see Sage v Taylor, 195 A.D.3d 971, 972). There can be more than one proximate cause of an accident (see Cox v Nunez, 23 A.D.3d 427, 427), 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; see Howard v Poseidon Pools, 72 N.Y.2d 972, 974).
In this case, the evidence submitted in support of the defendant's motion, when viewed in the light most favorable to the plaintiff (see Boulos v Lerner-Harrington, 124 A.D.3d 709), failed to demonstrate, prima facie, that the defendant was free from fault in the happening of the accident. The defendant's submissions did not eliminate triable issues of fact as to whether she was negligent in failing to see that which through the proper use of her senses she should have seen and whether she used reasonable care to avoid colliding with the plaintiff (see Fried v Misser, 115 A.D.3d 910, 911; Espiritu v Shuttle Express Coach, Inc., 115 A.D.3d 787, 789).
Since the defendant failed to establish her prima facie entitlement to judgment as a matter of law dismissing the complaint, we need not address the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.
DUFFY, J.P., CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concur.