Yang v. Howsal Cab Corp.

• Decision Date: 29 May 2013
• Citation: 2013 N.Y. Slip Op. 03819,966 N.Y.S.2d 167,106 A.D.3d 1055
• Parties: LU YUAN YANG, respondent, v. HOWSAL CAB CORP., et al., appellants.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1055

966 N.Y.S.2d 167

2013 N.Y. Slip Op. 03819

LU YUAN YANG, respondent,

v.HOWSAL CAB CORP., et al., appellants.

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

May 29, 2013.

Windels Marx Lane & Mittendorf, LLP, New York, N.Y. (Christopher D. Mehno of counsel), for appellants.

James Lo, Esq., P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated December 14, 2012, as granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff, while on his bicycle, was stopped in the middle of the northbound bicycle lane on Central Park West, at its intersection with West 95th Street, when he was struck by a motor vehicle operated by the defendant Eddy S. Suharwono and owned by the defendant Howsal Cab Corp. The defendants' vehicle had been traveling northbound, in the lane closest to the subject bicycle lane. The plaintiff commenced this action against the defendants to recover damages for his personal injuries and, after discovery was completed, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the plaintiff's motion.

To prevail on a motion for summary judgment on the issue of liability, 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 ( 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 1341, 1342, 924 N.Y.S.2d 282;Mackenzie v. City of New York, 81 A.D.3d 699, 700, 916 N.Y.S.2d 511;Klee v. Americas Best Bottling Co., 60 A.D.3d 911, 875 N.Y.S.2d 270), since there can be more than one proximate cause of an accident ( see Allen v. Echols, 88 A.D.3d 926, 926, 931 N.Y.S.2d 402;Bonilla v. Calabria, 80 A.D.3d 720, 720, 915 N.Y.S.2d 615;Kim v. Acosta, 72 A.D.3d 648, 648, 897 N.Y.S.2d 721;Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389). Where the movant has established his or her entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault ( see Singh v. Singh, 81 A.D.3d 807, 916 N.Y.S.2d 527;Martin v. Ali, 78 A.D.3d 1135, 912 N.Y.S.2d 610;Thompson v. Schmitt, 74 A.D.3d 789, 902 N.Y.S.2d 606;Ishak v. Guzman, 12 A.D.3d 409, 784 N.Y.S.2d 600).

Further, a driver is bound to see what is there to be seen through the proper use of his or her senses and is negligent for failure to do so ( see Colpan v. Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 777, 949 N.Y.S.2d 124;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, 970, 919 N.Y.S.2d 59;Topalis v. Zwolski, 76 A.D.3d 524, 525, 906 N.Y.S.2d 317;Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861). A driver also has a duty to exercise reasonable care under the circumstances to avoid an accident ( see Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 959 N.Y.S.2d 270;Byrne v. Calogero, 96 A.D.3d 704, 705, 945 N.Y.S.2d 737;Zweeres v. Materi, 94 A.D.3d 1111, 1111, 942 N.Y.S.2d 625;Filippazzo v. Santiago, 277 A.D.2d 419, 420, 716 N.Y.S.2d 710).

Here, the plaintiff established his entitlement to judgment as a matter of law on the issue of liability by submitting a transcript of his deposition testimony and that of the defendant driver...