Bermejo v. Khaydarov

155 A.D.3d 597

63 N.Y.S.3d 107

Ignacio A. ALTAMIRANO BERMEJO, respondent,

v.Aziz M. KHAYDAROV, et al., appellants.

2017-01742, Index No. 4127/14.

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

Nov. 1, 2017.

Lewis Brisbois Bisgaard & Smith, LLP, New York, NY (Nicholas Hurzeler, C. Briggs Johnson, and Matthew P. Cueter of counsel), for appellants.

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...