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ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT.

The Second Department determined plaintiff’s motion for summary judgment in this traffic accident case was properly denied. Plaintiff did not demonstrate freedom from comparative fault. Plaintiff had the right-of-way at the time of the collision:

While an operator of a motor vehicle traveling with the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield … , the driver with the right-of-way nonetheless also has an obligation to keep a proper lookout and see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles … . There can be more than one proximate cause of a motor vehicle accident and, thus, “a plaintiff moving for summary judgment on the issue of liability in an action alleging negligence must establish, prima facie, not only that the defendant was negligent but that the plaintiff was free from comparative fault” … . The issue of comparative fault is generally a question for the trier of fact … .

Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law, as her submissions were insufficient to eliminate all triable issues of fact as to whether she contributed to the happening of the accident … . Taylor v Brat Auto Sales, Ltd., 2016 NY Slip Op 08220, 2nd Dept. 12-7-16

 

NEGLIGENCE (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/TRAFFIC ACCIDENTS (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/INTERSECTIONS (ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/SUMMARY JUDGMENT (COMPARATIVE FAULT, TRAFFIC ACCIDENTS, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF HAD THE RIGHT OF WAY AT THE TIME OF THE COLLISION, SUMMARY JUDGMENT WAS PROPERLY DENIED, PLAINTIFF DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT)

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