Bermejo v. Khaydarov

Aleksandr Vakarev, Brooklyn, NY (Harlan Wittenstein of counsel), for respondent.

RANDALL T. ENG, P.J., SHERI S. ROMAN, ROBERT J. MILLER, and LINDA CHRISTOPHER, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated October 6, 2016, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

This action arises out of an automobile accident that occurred on Rogers Avenue in Brooklyn when a vehicle operated by the plaintiff collided with a vehicle owned by the defendant Ambulette Star Trans, Inc., and operated by the defendant Aziz M. Khaydarov. Following the accident, the plaintiff commenced this action to recover damages for personal injuries. At his deposition, the plaintiff testified that he was attempting to merge from the center lane of Rogers Avenue into the right lane in anticipation of turning right on Hawthorne Street when he collided with the defendants' vehicle, which was traveling in the right lane. The defendants subsequently moved for summary judgment dismissing the complaint, contending that the sole proximate cause of the accident was the plaintiff's negligence in making an unsafe lane change and sideswiping the defendants' vehicle. The Supreme Court denied the motion, and the defendants appeal.

"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 Gobin v. Delgado, 142 A.D.3d 1134, 1135, 38 N.Y.S.3d 63 ; Estate of Cook v. Gomez, 138 A.D.3d 675, 676, 30 N.Y.S.3d 148 ). "There can be more than one proximate cause of an accident" (Estate of Cook v. Gomez, 138 A.D.3d at 676–677, 30 N.Y.S.3d 148 ), and, "[g]enerally, it is for the trier of fact to determine the issue of proximate cause" ( Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Lukyanovich v. H.L. Gen. Contrs., Inc., 141 A.D.3d 693, 35 N.Y.S.3d 463 ). "However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts" ( Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d at 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d at 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Estate of Cook v. Gomez, 138 A.D.3d at 675, 30 N.Y.S.3d 148 ).

Here, in support of their motion for summary judgment, the defendants primarily relied upon the deposition testimony of the plaintiff and Khaydarov, who gave different accounts of the accident. This evidence failed to eliminate issues of fact as to whether there was sufficient time and distance between the vehicles for the plaintiff to safely change lanes, and whether Khaydarov failed to see what was there to be seen and exercised reasonable care to avoid the collision (see Beres v. Terranera, 153 A.D.3d 483, 60 N.Y.S.3d 207 ; Gabriel v. Great Lakes Concrete Prods. LLC, 151 A.D.3d 1855, 1856, 57 N.Y.S.3d 605 ; Zbock v. Gietz, 145 A.D.3d 1521, 1523, 44 N.Y.S.3d 302 ; Fogel v. Rizzo, 91 A.D.3d 706, 707, 937 N.Y.S.2d 122 ). Thus, the defendants failed to establish, prima facie, that Khaydarov was free from fault in the happening of the accident, or that the alleged negligence of the plaintiff was the sole proximate cause of the accident. Since the defendants failed to sustain their prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.