Golovnya v. Artemchenko

210 A.D.3d 1058

180 N.Y.S.3d 177

Yelena GOLOVNYA, appellant,

v.Alisa ARTEMCHENKO, respondent, et al., defendant.

2021-05995

Index No. 509023/19

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

Submitted—October 17, 2022

November 30, 2022

William Pager, Brooklyn, NY, for appellant.

James G. Bilello & Associates, Hicksville, NY (Susan J. Mitola of counsel), for respondent.

MARK C. DILLON, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Wavny Toussaint, J.), dated August 6, 2021. The order, insofar as appealed from, granted that branch of the motion of the defendant Alisa Artemchenko which was for summary judgment dismissing the complaint insofar as asserted against her.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Alisa Artemchenko which was for summary judgment dismissing the complaint insofar as asserted against her is denied.

On March 19, 2019, the plaintiff, Yelena Golovnya, allegedly sustained personal injuries and property damage when a vehicle she was operating was involved in a collision on the Belt Parkway in Brooklyn with vehicles operated by the defendant Alisa Artemchenko and the defendant Robert Walton (hereinafter together the defendants). The plaintiff commenced this action, inter alia, to recover damages for personal injuries against the defendants. Artemchenko moved, among other things, for summary judgment dismissing the complaint insofar as asserted against her. In an order dated August 6, 2021, the Supreme Court, inter alia, granted that branch of Artemchenko's motion. The plaintiff appeals.

"Defendants moving for summary judgment in a negligence action arising out of an automobile accident have the burden of establishing, prima facie, that they were not at fault in the happening of the accident" ( Elusma v. Jackson, 186 A.D.3d 1326, 1327–1328, 130 N.Y.S.3d 500, quoting Nesbitt v. Gallant, 149 A.D.3d 763, 763, 51 N.Y.S.3d 568 ). "There can be more than one proximate cause of an accident, and [g]enerally, it is for the trier of fact to determine the issue of proximate cause" ( Choo v. Virginia Transp. Corp., 204 A.D.3d 743, 744, 164 N.Y.S.3d 473 [internal quotation marks omitted]; see Shuofang Yang v. Sanacore, 202 A.D.3d 1120, 1121, 163 N.Y.S.3d 605 ). "[T]he issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts" ( Rodriguez v. Palacio, 199 A.D.3d 728, 157 N.Y.S.3d 75 [internal quotations omitted]). However, summary judgment on the issue of liability is not warranted where "the conflicting deposition testimony ... submitted in support of the motion regarding the manner in which the accident occurred failed to eliminate triable issues of fact as to that issue" ( Cho v. Demelo, 175 A.D.3d 1235, 1237, 108 N.Y.S.3d 159 ; see Cruz v. Valentine Packaging Corp., 167 A.D.3d 707, 708–709, 89 N.Y.S.3d 316 ).

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