Sirlin v. Schreib

• Decision Date: 14 May 2014
• Citation: 117 A.D.3d 819,2014 N.Y. Slip Op. 03504,985 N.Y.S.2d 688
• Parties: Mark R. SIRLIN, respondent, v. Robert J. SCHREIB III, et al., appellants.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 819

985 N.Y.S.2d 688

2014 N.Y. Slip Op. 03504

Mark R. SIRLIN, respondent,

v.Robert J. SCHREIB III, et al., appellants.

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

May 14, 2014.

Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Keri A. Wehrheim of counsel), for appellants.

Michael G. LoRusso, P.C., Syosset, N.Y. (Shayne, Dachs, Sauer & Dachs, LLP [Jonathan A. Dachs], of counsel), for respondent.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Martin, J.), dated May 30, 2013, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff, who was riding his bicycle westbound in a designated bicycle lane on Route 25A in Shoreham, was involved in an accident with a vehicle operated by the defendant Robert J. Schreib III (hereinafter Robert) and owned by the defendant Lynn M. Schreib. The accident occurred at an entrance to a parking lot for a shopping center when Robert, who had been traveling eastbound on Route 25A, made a left turn into the parking lot. The plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the motion.

“There can be more than one proximate cause [of an accident] and thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law” ( Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282;see Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 620, 959 N.Y.S.2d 270;Simmons v. Canady, 95 A.D.3d 1201, 1202, 945 N.Y.S.2d 138). Consequently, “[t]o prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault” ( Ramos v. Bartis, 112 A.D.3d 804, 804, 977 N.Y.S.2d 315;see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690;Pollack v. Margolin, 84 A.D.3d at 1342, 924 N.Y.S.2d 282).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that Robert, who testified at his deposition that he did not see the plaintiff until seconds before the impact, was negligent in violating Vehicle and Traffic Law §§ 1141 and 1163(a) by making a left turn into the path of oncoming traffic without yielding the right of way to the plaintiff when the turn could not be made with reasonable safety ( see Fenster v. Ellis, 71 A.D.3d 1079, 1081, 898 N.Y.S.2d 582;Torro v. Schiller, 8 A.D.3d 364, 365, 777 N.Y.S.2d 915;Maloney v. Niewender, 27 A.D.3d 426, 812 N.Y.S.2d 585;Burns v. Mastroianni, 173 A.D.2d 754, 755, 570 N.Y.S.2d 629). The plaintiff also demonstrated that Robert's negligence was the sole proximate cause of the...