Gobin v. Delgado

• Decision Date: 28 September 2016
• Citation: 38 N.Y.S.3d 63,2016 N.Y. Slip Op. 06194,142 A.D.3d 1134
• Parties: Nankumarie GOBIN, et al., appellants, v. Brenda Y. DELGADO, respondent.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 1134

38 N.Y.S.3d 63

2016 N.Y. Slip Op. 06194

Nankumarie GOBIN, et al., appellants,

v.Brenda Y. DELGADO, respondent.

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

Sept. 28, 2016.

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...