Morocho v. Brown

208 A.D.3d 777

174 N.Y.S.3d 410

Bolivar R. MOROCHO, respondent,

v.Kamar N. BROWN, et al., appellants.

2021–04845

Index No. 500845/20

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

Argued—May 26, 2022

August 24, 2022

Molod Spitz & DeSantis, P.C., New York, NY (Robert A. Von Hagen of counsel), for appellants.

Sacco & Fillas, LLP, Astoria, New York (Alex Diaz of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated June 30, 2021. The order, insofar as appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

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

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident in Brooklyn. At the time of the accident, the plaintiff was preparing to make a U-turn from a bus lane when his vehicle collided with a minibus operated by the defendant Kamar Brown and owned by the defendant Heart to Heart Social Adult Services, LLC. The defendants moved, among other things, for summary judgment dismissing the complaint. In an order dated June 30, 2021, the Supreme Court, inter alia, denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint. The defendants appeal.

"Defendants moving for summary judgment in a personal injury action must demonstrate, prima facie, that they did not proximately cause the plaintiff's injuries" ( Fargione v. Chance, 154 A.D.3d 713, 714, 62 N.Y.S.3d 444 ; see Fergile v. Payne, 202 A.D.3d 928, 930, 163 N.Y.S.3d 216 ). "Since there can be more than one proximate cause of an accident, a defendant seeking summary judgment must establish freedom from ... fault as a matter of law" ( Wilson v. Mazewski, 175 A.D.3d 1352, 1353, 105 N.Y.S.3d 888 ; see Fergile v. Payne, 202 A.D.3d at 930, 163 N.Y.S.3d 216 ). "[A] driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision, to see what there is to be seen through the proper use of his or her senses, and to drive at a speed that is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing" ( Pei Ru Guo v. Efkarpidis, 185 A.D.3d 949, 951–952, 127 N.Y.S.3d 545 ; see Fergile v. Payne, 202 A.D.3d at 930, 163 N.Y.S.3d 216 ).

Here, through the affidavit of Brown, as well as corroborating video from a dashboard camera and photographs taken immediately following the accident, the defendants established that Brown was traveling at a safe rate of speed in the lane of travel when he saw the plaintiff's vehicle stopped within the bus lane to the right. As the defendants’ vehicle approached, the plaintiff suddenly moved his vehicle and veered to the left in an attempt to make a U-turn across the defendants’ lane of traffic, colliding with the defendants’ vehicle. Brown averred that he slammed on the brakes, but there was nothing he could do to avoid the plaintiff's vehicle. While a driver with the right-of-way has a duty to use reasonable care to avoid a collision, "a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ( Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 ; see Adobea v. Junel, 114 A.D.3d 818, 820, 980 N.Y.S.2d 564 ; Vazquez v. New York City Tr. Auth., 94 A.D.3d 870, 871, 941 N.Y.S.2d 887 ; Vainer v. DiSalvo, 79 A.D.3d 1023, 1024, 914 N.Y.S.2d 236 ). The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the accident was solely caused by ...