Mu–Jin Chen v. Cardenia

• Decision Date: 27 April 2016
• Docket Number: 2015-06390, Index No. 16904/13.
• Parties: MU–JIN CHEN, respondent, v. Angela CARDENIA, appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1126

31 N.Y.S.3d 134

2016 N.Y. Slip Op. 03182

MU–JIN CHEN, respondent,

v.Angela CARDENIA, appellant.

2015-06390, Index No. 16904/13.

Supreme Court, Appellate Division, Second Department, New York.

April 27, 2016.

Russo, Apoznanski & Tambasco, Melville, N.Y. (Yamile Al–Sullami and Gerard Ferrara of counsel), for appellant.

Caesar & Napoli, P.C., New York, N.Y. (Dennis P. Ryan and Ernest Spivak of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Sampson, J.), entered April 21, 2015, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.

This case arises from a two-vehicle accident which took place on November 28, 2012, at the intersection of 148th Street and 60th Avenue in Queens. One of the vehicles was owned and operated by the plaintiff, and the other vehicle was owned and operated by the defendant. At the time of the accident, the plaintiff was traveling southbound on 148th Street and the defendant was traveling westbound on 60th Avenue. It is undisputed that 148th Street at its intersection with 60th Avenue is not governed by any traffic control devices, while 60th Avenue at its intersection with 148th Street is controlled by a stop sign. The plaintiff alleged that he proceeded with the right of way into the intersection when he was struck by the defendant's vehicle. The plaintiff commenced this action against the defendant and thereafter moved for summary judgment on the issue of liability on the ground that the defendant violated Vehicle and Traffic Law § 1142(a)

by failing to yield the right-of-way to his vehicle. The Supreme Court granted the motion. We reverse.

A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws which require them to yield (see Vehicle and Traffic Law § 1141

; Arias v. Tiao, 123 A.D.3d 857, 858, 1 N.Y.S.3d 133 ; Rodriguez v. Klein, 116 A.D.3d 939, 983 N.Y.S.2d 851 ; Regans v. Baratta, 106 A.D.3d 893, 894, 965 N.Y.S.2d 171 ; Ahern v. Lanaia, 85 A.D.3d 696, 924 N.Y.S.2d 802 ; Mohammad v. Ning, 72 A.D.3d 913, 914, 899 N.Y.S.2d 356 ). Moreover, 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 at 939, 983 N.Y.S.2d 851 ; Laino v. Lucchese, 35 A.D.3d 672, 827 N.Y.S.2d 249 ; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 ; Bongiovi v. Hoffman, 18 A.D.3d 686, 687, 795 N.Y.S.2d 354 ). However, a 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 at 893, 965 N.Y.S.2d 171 ;

Simmons v. Canady, 95 A.D.3d 1201, 1202, 945 N.Y.S.2d 138

). “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 ; see

Jones v. Vialva–

Duke,

106 A.D.3d 1052, 966 N.Y.S.2d 187 ; Graeber–Nagel v. Naranjan, 101 A.D.3d 1078, 956 N.Y.S.2d 530 ), and the issue of comparative fault is generally a question for the jury to decide (see

Sokolovsky v. Mucip, Inc., 32 A.D.3d 1011, 821 N.Y.S.2d 463 ; Valore v. McIntosh, 8 A.D.3d 662, 779 N.Y.S.2d 782 ). Consequently, a plaintiff seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault (see

Jones v. Vialva–Duke, 106 A.D.3d at 1053, 966 N.Y.S.2d 187 ; Graeber–Nagel v. Naranjan, 101 A.D.3d at 1078, 956 N.Y.S.2d 530 ; Mackenzie v. City of New York, 81 A.D.3d 699, 916 N.Y.S.2d 511 ; Bonilla v. Gutierrez, 81 A.D.3d 581, 915 N.Y.S.2d 634 ).

Here, in support of his motion, the plaintiff relied upon, inter alia, the deposition transcripts of both parties. While such evidence showed that the defendant failed to yield the right-of-way in violation of Vehicle and Traffic Law § 1142(a)

, the evidence failed to establish the plaintiff's freedom from comparative fault or that the defendant's Vehicle and Traffic Law violation was the sole proximate cause of the accident (see

Skoczek v. Delgado, 115 A.D.3d 844, 982 N.Y.S.2d 337 ; Stern v. Amboy Bus Co., Inc., 102 A.D.3d 763, 763, 957 N.Y.S.2d 894 ; Graeber–Nagel v. Naranjan, 101 A.D.3d 1078, 956 N.Y.S.2d 530 ; Simmons v. Canady, 95 A.D.3d at 1201, 945 N.Y.S.2d 138 ). The plaintiff testified that he did not see the defendant's vehicle until impact, despite his other testimony that prior to entering the intersection, he had a clear “three to four car lengths” view of 60th Avenue, and that he “checked to his right” immediately before entering the intersection. In contrast, the defendant testified that, due to the presence of a “large high” van parked on 148th Street which blocked her view of oncoming traffic in that street, she had to stop four times at the intersection and inch forward until she could see around the van. The presence of this van is also depicted on the diagram which was drawn on the police...