Gabriel v. Great Lakes Concrete Prods. LLC

151 A.D.3d 1855

57 N.Y.S.3d 605

John J. GABRIEL, III, Plaintiff–Appellant,

v.GREAT LAKES CONCRETE PRODUCTS LLC, and Wayne T. Bonnett, Defendants–Respondents.

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

June 16, 2017.

Cellino & Barnes, P.C., Buffalo (Ellen B. Sturm of Counsel), for Plaintiff–Appellant.

Costello, Cooney & Fearon, PLLC, Camillus (Maureen G. Fatcheric of Counsel), for Defendants–Respondents.

PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND SCUDDER, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when his vehicle was struck by a cement-mixer truck operated by defendant Wayne T. Bonnett and owned by defendant Great Lakes Concrete Products LLC. Plaintiff appeals from an order that, inter alia, denied that part of his motion seeking summary judgment dismissing defendants' affirmative defense of comparative negligence. We affirm.

In support of his motion, plaintiff submitted evidence that the truck driven by Bonnett was traveling in the center lane, and then moved into the right lane and struck plaintiff's vehicle, thus establishing that Bonnett's negligence was a proximate cause of the accident (see Williams v. New York City Tr.

Auth.,

37 A.D.3d 827, 827–828, 832 N.Y.S.2d 54 ; see also Vehicle and Traffic Law § 1128[a] ; see generally

Russo v. Pearson, 148 A.D.3d 1762, 1763, 50 N.Y.S.3d 757 ). Defendants raised a triable issue of fact in opposition, however, by submitting evidence that Bonnett checked his mirror, saw that the lane was clear, and put on his signal prior to moving into the right lane, and that plaintiff was accelerating in order to pass Bonnett on the right at the time of the accident and therefore did not use reasonable care to avoid the collision (see

Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365 ). Thus, viewing the evidence in the light most favorable to defendants (see Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 340, 937 N.Y.S.2d 157, 960 N.E.2d 948 ), we conclude that defendants raised a triable issue of fact concerning the cause of the accident (see Fogel v. Rizzo, 91 A.D.3d 706, 707, 937 N.Y.S.2d 122 ), and whether plaintiff's conduct contributed to it (see Romano, 305 A.D.2d at 577, 759 N.Y.S.2d 365 ; see generally Russo, 148 A.D.3d at 1763, 50 N.Y.S.3d 757 ).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.