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Competing Expert Affidavits Raised a Question of Fact About Whether the Speed of Defendant’s Vehicle Was a Proximate Cause of the Accident—Plaintiff’s Vehicle Was Struck Broadside by Defendant’s Vehicle When Plaintiff Pulled Into Traffic–Supreme Court’s Grant of Summary Judgment to Defendant Reversed

The Third Department determined that plaintiff had raised a question of fact whether the speed of defendant’s vehicle was the proximate cause of the accident.  Plaintiff had pulled into traffic and was struck broadside by defendant. Supreme Court had granted defendant’s motion for summary judgment:

It is uncontested that plaintiff’s portion of the intersection was controlled by a blinking red light, and that she was therefore required to yield the right-of-way to oncoming vehicles that were “approaching so closely . . . as to constitute an immediate hazard” (Vehicle and Traffic Law § 1142 [a]; see Vehicle and Traffic Law § 1113 [a]). * * *

In opposition to defendant’s motion, plaintiff submitted the affidavit of a certified accident reconstructionist and former police officer. Using the same data as defendant’s expert, plaintiff’s expert concluded that, at the time defendant began braking, she was traveling at a faster speed of 49.95 mph, and he opined that had defendant not been exceeding the speed limit, plaintiff would have had sufficient time to safely clear defendant’s lane of travel and complete her turn. * * * The two experts utilized the same data and, while they arrived at different conclusions with respect to defendant’s speed, “a disagreement . . . between experts merely creates a question of credibility to be resolved by the finder of fact” … .

Upon a defendant’s motion, the evidence must be viewed in the light most favorable to the plaintiff … . It is well established that “there may be more than one proximate cause of an accident” … . Upon review, we find that plaintiff’s evidence gives rise to material issues of fact as to whether defendant’s speed was excessive and, if so, whether her speed was a proximate cause of the collision … . O’Brien v Couch, 2015 NY Slip OP 00273, 3rd Dept 1-8-15

 

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