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Failure to Eliminate Comparative Negligence Precluded Summary Judgment to Plaintiff In Car-Accident Action

In reversing the grant of summary judgment to the defendant in a car accident case, the Second Department noted there can be more than one proximate cause of an accident and defendant failed to demonstrate freedom from comparative fault:

“There can be more than one proximate cause of an accident”…. A driver who has the right-of-way may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in an intersection…. Indeed, a movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative…. Here, the transcripts of the deposition testimony of the plaintiff and the defendant, which were submitted in support of the defendant’s motion, raised a triable issue of fact as to what actions the defendant took in order to avoid the collision. Therefore, the defendant failed to establish her prima facie entitlement to judgment as a matter of law … .  Jones v Vialva-Duke, 2013 NY Slip Op 03816, 2nd Dept, 5-29-13

TRAFFIC ACCIDENTS

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DEFENSE COUNSEL WAITED UNTIL AFTER THE PROSECUTOR MADE SEVERAL ARGUABLY IMPROPER REMARKS IN SUMMATION BEFORE OBJECTING “TO ALL OF THIS;” THE OBJECTION WAS DEEMED UNTIMELY, VAGUE, AMBIGUOUS, GENERAL AND NONSPECIFIC; THEREFORE THE ISSUES RAISED BY THE PROSECUTOR’S REMARKS WERE NOT PRESERVED FOR APPEAL (SECOND DEPT). ​
THERE WAS EVIDENCE OF TWO PROXIMATE CAUSES OF PLAINTIFF’S SLIP AND FALL: (1) HER KNEE BUCKLED; AND (2) WHEN SHE TRIED TO STOP HER FALL BY GRABBING THE VANITY, THE VANITY MOVED FIVE INCHES AWAY FROM THE WALL (SECOND DEPT).
DEFENDANT’S BARE DENIAL OF THE RECEIPT OF NOTICE OF THE FORECLOSURE ACTION WAS NOT A SUFFICIENT BASIS FOR GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
DEFENDANT’S CAR MERELY FURNISHED THE CONDITION FOR PLAINTIFF’S BICYCLE ACCIDENT, NOT A PROXIMATE CAUSE.
Failure to Affirmatively Demonstrate When the Area Where the Slip and Fall Occurred Was Last Inspected and Failure to Affirmatively Demonstrate the Condition Was a “Latent Defect” Precluded Summary Judgment—Defendants Failed to Affirmatively Demonstrate the Absence of Constructive Notice of the Condition
PETITIONER-REPORTER PREVAILED IN THE FOIL ACTION DESPITE THE AVAILABILITY OF SOME OF THE REQUESTED INFORMATION ON A PUBLIC WEBSITE; THEREFORE PETITIONER WAS ENTITLED TO ATTORNEY’S FEES AND LITIGATION COSTS (SECOND DEPT).
CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).
DISTRIBUTING A LETTER WHICH DEALT WITH RELIGIOUS (NATION OF ISLAM) INFORMATION DID NOT VIOLATE ANY PRISON GUIDELINES OR POLICIES, MISBEHAVIOR DETERMINATION ANNULLED (SECOND DEPT).

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