Matamoro v. City of New York

• Citation: 94 A.D.3d 722,2012 N.Y. Slip Op. 02468,941 N.Y.S.2d 684
• Parties: Francis MATAMORO, etc., et al., respondents, v. CITY OF NEW YORK, et al., appellants.
• Decision Date: 03 April 2012
• Court: New York Supreme Court Appellate Division

2012 N.Y. Slip Op. 02468

94 A.D.3d 722

941 N.Y.S.2d 684

Francis MATAMORO, etc., et al., respondents,

v.CITY OF NEW YORK, et al., appellants.

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

April 3, 2012.

Schnader Harrison Segal & Lewis LLP, New York, N.Y. (Allison Snyder and Bruce Strikowsky of counsel), for appellants.

Gary P. Kauget, P.C., Brooklyn, N.Y. (Karen M. Emma of counsel), for respondents.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Schmidt, J.), dated August 10, 2011, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

A driver is bound to see what is there to be seen through the proper use of his or her senses ( see 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 a driver with the right-of-way has a duty to use reasonable care to avoid a collision ( see Tapia v. Royal Tours Serv., Inc., 67 A.D.3d 894, 895, 889 N.Y.S.2d 225). Moreover, there can be more than one proximate cause of an accident, and the question of comparative negligence is generally a question for the jury ( see Jahangir v. Logan Bus Co., Inc., 89 A.D.3d 1064, 1065, 933 N.Y.S.2d 402; Wilson v. Rosedom, 82 A.D.3d at 970, 919 N.Y.S.2d 59).

In support of their motion for summary judgment, the defendants submitted, inter alia, the deposition testimony of the defendant driver Celestin Jean, and the deposition testimony of the infant plaintiff. Although this evidence demonstrated that Jean had the right-of-way when the school bus he was driving came into contact with the infant plaintiff, it was insufficient to establish, prima facie, that Jean was not negligent and that the infant plaintiff's alleged negligence was the sole proximate cause of the accident ( see Topalis v. Zwolski, 76 A.D.3d at 525, 906 N.Y.S.2d 317; Tapia v. Royal Tours Serv., Inc., 67 A.D.3d at 895–896, 889 N.Y.S.2d 225; Spicola v. Piracci, 2 A.D.3d 1368, 1369, 768 N.Y.S.2d 867; Levy v. Town Bus Corp., 293 A.D.2d 452, 739 N.Y.S.2d 459). Since the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law, the defendants' motion for summary judgment was properly denied,...