Soibov v Palmer

Soibov v Palmer 2013 NY Slip Op 00475 Decided on January 30, 2013 Appellate Division, Second 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 January 30, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
DANIEL D. ANGIOLILLO, J.P.
JOHN M. LEVENTHAL
PLUMMER E. LOTT
LEONARD B. AUSTIN, JJ.
2012-00156
(Index No. 21681/08)

[*1]Farruh Soibov, etc., respondent,

v

Kenneth P. Palmer, et al., appellants, et al., defendant. Litchfield Cavo LLP, New York, N.Y. (Victor A. Vincenzi of counsel), for appellants.




Wingate Russotti & Shapiro LLP, New York, N.Y. (David M.
Schwarz of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Kenneth P. Palmer and Glass Gardens, Inc., doing business as Shop Rite of Rochelle Park, appeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated November 2, 2011, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

The instant action arises out of a collision between a bicyclist and a motorist that occurred at around 8:30 p.m. on an April evening. The moving defendants contend that the sole proximate cause of the accident was the plaintiff bicyclist's failure to have a headlight on his bicycle (see Vehicle and Traffic Law § 1236[a]), and failure to yield the right of way (see Vehicle and Traffic Law § 1143). However, there can be more than one proximate cause of an accident (see Cox v Nunez, 23 AD3d 427; Romano v 202 Corp., 305 AD2d 576, 577). Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether the plaintiff entered the intersection before the defendant driver, whether it was the defendant driver who failed to yield the right of way, and whether the defendant driver failed to see that which through proper use of his senses he should have seen (see Matamoro v City of New York, 94 AD3d 722, 722-723; Tapia v Royal Tours Serv., 67 AD3d 894, 896). Accordingly, the Supreme Court properly denied the moving defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
ANGIOLILLO, J.P., LEVENTHAL, LOTT and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court