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Vuksanaj v. Abbott

Supreme Court of New York, Second Department

March 28, 2018

Katherine Vuksanaj, etc., plaintiff-respondent,
v.
Taylor B. Abbott, defendant-respondent, Todd M. Diederich, et al., appellants. (Index No. 1030/13)

          Argued - November 9, 2017

         D54933 L/htr

          Craig P. Curcio, Middletown, NY (Chandel M. Rispin of counsel), for appellants.

          Martin & Colin, P.C., White Plains, NY (William Martin of counsel), for plaintiff-respondent.

          Alan B. Brill, P.C., Suffern, NY (Nadia Ali of counsel), for defendant-respondent.

          MARK C. DILLON, J.P. COLLEEN D. DUFFY FRANCESCA E. CONNOLLY LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In an action to recover damages for personal injuries, the defendants Todd M. Diederich, Deer View Farms, Inc., and Eagle River, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (Robert DiBella, J.), dated November 11, 2016, as granted that branch of the plaintiff s motion which was for summary judgment on the issue of liability against them, and denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

         ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiffs motion which was for summary judgment on the issue of liability against the defendants Todd M. Diederich, Deer View Farms, Inc., and Eagle River, Inc., and substituting therefor a provision denying that branch the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

         On January 11, 2013, Crystal Vuksanaj (hereinafter Crystal) was a rear-seat passenger in a vehicle being operated by the defendant Taylor B. Abbott in the right lane of eastbound Route 17K in Newburgh. When Abbott attempted to make a U-turn, his vehicle was struck by a vehicle owned by the defendants Deer View Farms, Inc., and Eagle River, Inc., and operated by the defendant Todd M. Diederich (hereinafter collectively the appellants). Diederich had been driving the vehicle behind Abbott in the same lane. The plaintiff, Crystal's mother, commenced this action on behalf of Crystal against Abbott and the appellants, alleging negligence. Following discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability against the appellants, and the appellants cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. In the order appealed from, the Supreme Court, among other things, granted that branch of the plaintiffs motion which was for summary judgment on the issue of the appellants' liability, and denied the appellants' cross motion for summary judgment.

         "To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault" (Phillip v D&D Carting Co., Inc., 136 A.D.3d 18, 22; see Ortiz v Welna, 152 A.D.3d 709; Ricciardi v Nelson, 142 A.D.3d 492; Bowen v Farrell, 140 A.D.3d 1001; Roberts v Zirkind, 140 A.D.3d 940). The issue of comparative fault is generally a question for the jury to decide (see Rodriguez v Klein, 116 A.D.3d 939; Regans v Baratta, 106 A.D.3d 893; Shui-Kwan Lui v Serrone, 103 A.D.3d 620).

         Contrary to the plaintiff s contention, she failed to establish, prima facie, that Crystal was free from culpable conduct with regard to the causation of her injuries. In support of her motion, the plaintiff relied upon, inter alia, the deposition transcripts of Abbott and Crystal. The testimony of Abbott and Crystal that they had consumed alcohol at a fraternity party prior to the subject accident raised questions of fact as to whether Crystal had knowledge that Abbott may have been intoxicated, which raised triable issues of fact regarding her comparative negligence (see Rodgers v Duffy, 87 A.D.3d 1126; Strychalski v Dailey, 65 A.D.3d 546; Saldana v Guzman, 34 Misc.3d 1233[A], 2012 NY Slip Op 50359[U] [Sup Ct, Nassau County]). Since triable issues of fact existed as to the comparative negligence of Crystal, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability against the appellants (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). Accordingly, the Supreme Court should have denied that branch of the plaintiffs motion.

         The Supreme Court properly denied the appellants' cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. "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; see Searless v Karczewski, 153 A.D.3d 957; Victor v Daley, 150 A.D.3d 1307, 1307; Faust v Gerde, 150 A.D.3d 1204, 1204). There can be more than one proximate cause of an accident (see Searless v Karczewski, 153 A.D.3d at 957; Faust v Gerde, 150 A.D.3d at 1204; Cox v Nunez, 23 A.D.3d 427, 427), 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; see Searless v Karczewski, 153 A.D.3d at 957).

         In support of their cross motion, the appellants submitted, inter alia, the deposition transcripts of Abbott and Diederich, the driver of the vehicle. Abbott and Diederich provided conflicting testimony as to how the subject accident occurred. When viewing the evidence submitted on the cross motion in the light most favorable to the plaintiff and Abbott (see Socci v Levy,90 A.D.3d 1020, 1021), Abbott's version of the accident raised a triable issue of fact as to whether Diederich was at fault in the happening of the accident by following Abbott's vehicle too closely (see Vehicle and Traffic Law § 1129[a]; Bovt v Subaru Auto Leasing, Ltd.,50 A.D.3d 612; Pawlukiewicz v Boisson,275 A.D.2d 446; Burke v Kreger Truck Renting Co.,272 A.D.2d 494). In light of the appellants' failure to make a prima facie ...


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