The Second Department, reversing Supreme Court, determined plaintiff's complaint should not have been dismissed. Plaintiff was injured when he was struck by a forklift as he was riding his bicycle the wrong way on a one-way street. Although plaintiff was negligent, the defendant failed to affirmatively demonstrate the forklift operator was free from negligence:
While the plaintiff was negligent in traveling the wrong way on a one-way street (see Vehicle and Traffic Law §§ 1127[a]; 1231, 1234[a]), there can be more than one proximate cause of an accident … . A defendant moving for summary judgment has the burden of establishing freedom from fault in the happening of the accident … . Thus, the fact that the plaintiff was riding his bicycle in the wrong direction on a one-way street would not preclude a finding that negligence by the defendant's employee contributed to the accident … .
Here, the defendant failed to meet its prima facie burden of establishing the forklift operator's freedom from fault in the happening of this accident as a matter of law … . The papers the defendant submitted in support of its motion demonstrated the existence of triable issues of fact as to whether the forklift operator failed to exercise due care before proceeding from the driveway onto the street (see Vehicle and Traffic Law §§ 1143, 1146[a]; 1173…). Nunez v Olympic Fence & Railing Co., Inc., 2016 NY Slip Op 02791, 2nd Dept 4-13-16