Miran Choi ap, V. Douglas F. Schwanenbauer, res – (Index No. 13236/13)
March 9, 2015 Posted By Joseph A. French Complex Litigation
In this auto accident case, plaintiff appealed an order from Queens County Supreme Court, denying plaintiff’s motion for summary judgment on the issue of liability. Plaintiffs (driver and passenger) established prima facie entitlement to judgment by demonstrating that defendant violated Vehicle and Traffic Law § 1141, when defendant made a left turn directly into the path of the Plaintiff’s vehicle, and that this breach of Traffic Law was the lone instigator of this incident. In opposition to Plaintiff’s motion, defendant raised the issue as to the Plaintiff’s comparable fault in this accident. Coupled with the defendant’s inability to judge the distances between the two vehicles at the start of the left turn, the Plaintiff’s speed shortly before the collision raised a triable issue of fact as to whether in the exercise of reasonable care, the incident could have been prevented. In view of that, the Supreme Court properly denied that branch of plaintiff’s motion which was for summary judgment on the issue of liability for the driver of the plaintiff’s car. However, the right of an innocent passenger to summary judgment is not limited by potential issues of comparative negligence between the two drivers. Appropriately, since the defendant did not raise any triable issue as to any relative fault of Lee, that branch of the plaintiff’s motion which was for summary judgment on the issue of liability in favor of Lee should have been granted.