Colpan v. Allied Cent. Ambulette, Inc.

• Decision Date: 25 July 2012
• Citation: 949 N.Y.S.2d 124,2012 N.Y. Slip Op. 05716,97 A.D.3d 776
• Parties: Esin COLPAN, respondent, v. ALLIED CENTRAL AMBULETTE, INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 776
949 N.Y.S.2d 124
2012 N.Y. Slip Op. 05716

Esin COLPAN, respondent,
v.
ALLIED CENTRAL AMBULETTE, INC., et al., appellants.

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

July 25, 2012.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and Gregory S. Katz of counsel), for appellants.

Gardiner & Nolan, Brooklyn, N.Y. (Thomas J. Nolan of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

[97 A.D.3d 776]In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much an order of the Supreme Court, Kings County (Lewis, J.), dated September 16, 2011, as

[949 N.Y.S.2d 125]

granted that branch of the plaintiff's motion which was for leave to reargue her opposition to their prior motion for summary judgment dismissing the complaint, which had been granted in an order of the same court dated June 3, 2011, and upon reargument, vacated so much of the order dated June 3, 2011, as granted their prior motion, and thereupon denied their prior motion.

[97 A.D.3d 777]ORDERED that the order dated September 16, 2011, is affirmed insofar as appealed from, with costs.

Contrary to the defendants' contention, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue ( see Shields v. Kleiner, 93 A.D.3d 710, 940 N.Y.S.2d 134;Fung v. Uddin, 60 A.D.3d 992, 876 N.Y.S.2d 469).

A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law ( see Vainer v. DiSalvo, 79 A.D.3d 1023, 914 N.Y.S.2d 236;Botero v. Erraez, 289 A.D.2d 274, 734 N.Y.S.2d 565;Ferrara v. Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81;Packer v. Mirasola, 256 A.D.2d 394, 681 N.Y.S.2d 559). Moreover, under the common law, a driver is bound to see what is there to be seen through the proper use of his or her senses ( see Matamoro v. City of New York, 94 A.D.3d 722, 941 N.Y.S.2d 684;Wilson v. Rosedom, 82 A.D.3d 970, 919 N.Y.S.2d 59;Topalis v. Zwolski, 76 A.D.3d 524, 525, 906 N.Y.S.2d 317;Gonzalez v. County of Suffolk, 277 A.D.2d 350, 716 N.Y.S.2d 404), and is negligent for the failure to do so ( see Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861).

“ ‘There can be more than one proximate cause of an accident’ ” ( Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389, quoting Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604;see Allen v. Echols, ...