Pollack v. Margolin
| Decision Date | 31 May 2011 |
| Citation | 924 N.Y.S.2d 282,2011 N.Y. Slip Op. 04649,84 A.D.3d 1341 |
| Parties | David POLLACK, respondent,v.Lance MARGOLIN, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HEREDavid J. Sobel, P.C., Smithtown, N.Y., for appellants.
Silverstein & Kahn, P.C., Huntington, N.Y. (Larry Silverstein of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated November 15, 2010, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The defendant driver correctly contends that, on the record presented, the plaintiff was negligent as a matter of law for failing to properly signal before changing lanes ( see Vehicle and Traffic Law § 1163[b]; Vainer v. DiSalvo, 79 A.D.3d 1023, 1024, 914 N.Y.S.2d 236). However, the defendant driver failed to establish, prima facie, that the plaintiff's negligence was the sole proximate cause of the subject collision. There can be more than one proximate cause and, thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law ( see Kim v. Acosta, 72 A.D.3d 648, 648–649, 897 N.Y.S.2d 721; Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389; Cox v. Nunez, 23 A.D.3d 427, 427–428, 805 N.Y.S.2d 604).
Here, although the defendant driver had the right-of-way and was entitled to anticipate that the plaintiff would obey the traffic laws ( see Martin v. Ali, 78 A.D.3d 1135, 1136, 912 N.Y.S.2d 610; Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290), the defendant driver also had a duty to use reasonable care to avoid a collision ( see Bonilla v. Calabria, 80 A.D.3d 720, 915 N.Y.S.2d 615; Cox v. Nunez, 23 A.D.3d at 427–428, 805 N.Y.S.2d 604). The conflicting deposition testimony regarding the facts surrounding the accident, which was submitted by the defendants in support of their summary judgment motion, failed to establish a prima facie case for judgment as a matter of law, since the evidence raised triable issues of fact as to whether the defendant driver contributed to the happening of the accident ( see Franzese v. Consolidated Dairies, Inc., 83 A.D.3d 775, 920 N.Y.S.2d 688; Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392). Accordingly, the Supreme Court's denial of the defendants' motion was proper even without considering ...
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