Cascante v Kakay

Cascante v Kakay 2011 NY Slip Op 07488 Decided on October 25, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 25, 2011
Tom, J.P., Saxe, Moskowitz, DeGrasse, Abdus-Salaam, JJ.
5812 301391/08

[*1]Olivenya Cascante, Plaintiff,

v

Bazar Kakay, et al., Defendants-Appellants, Khalid Mohammed, Defendant-Respondent.




Alexander J. Wulwick, New York, for appellants.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr. J.), entered January 26, 2011, which granted defendant Mohammed's motion for summary judgment dismissing the complaint and all cross claims as against him, unanimously affirmed, without costs.

Mohammed established his prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when the vehicle in which she was riding, which was operated by defendant Kakay and owned by defendant Chester Cab Corp. (collectively Kakay), collided with Mohammed's vehicle. Mohammed demonstrated that Kakay's negligence was the sole proximate cause of the accident by submitting, inter alia, deposition testimony of plaintiff and Mohammed indicating that the accident at issue occurred when, while driving northbound, Kakay drove from the left lane into the right lane, without first ascertaining whether he could safely change lanes (see Vehicle and Traffic Law § 1128[a]; Flores v City of New York, 66 AD3d 599 [2009]).

In opposition, Kakay failed to raise a triable issue of fact. Although plaintiff's testimony is somewhat unclear as to whether Mohammed's vehicle was traveling northbound and parallel to Kakay's vehicle, or whether it was heading westbound when it entered the intersection where the accident occurred, such testimony does not contradict the evidence establishing that Kakay was negligent and the sole proximate cause of the accident
(see Zummo v Holmes, 57 AD3d 366 [2008]; see also Rivera v Corbett, 69 AD3d 916 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 25, 2011 [*2]

CLERK