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PLAINTIFF, WHO HAD THE RIGHT OF WAY, DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS BUS-CAR COLLISION CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court’s grant of summary judgment to plaintiff driver, determined that, although plaintiff had the right of way, he did not demonstrate the absence of comparative fault in this car-bus collision case. A driver with the right of way still has the obligation to see what is there to be seen and to take evasive action:

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Although the 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 operator with the right-of-way also has an obligation to keep a proper lookout to see what can be seen through the reasonable use of his or her senses to avoid colliding with other vehicles … . Since there can be more than one proximate cause of an accident, a plaintiff moving for summary judgment on the issue of liability has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault … .

Here, Mark [plaintiff] failed to establish, prima facie, that he was not comparatively at fault in the happening of the accident. In support of his motion and cross motion, Mark submitted, inter alia, the deposition testimony of the parties, which raised triable issues of fact as to whether Mark failed to see what was there to be seen and failed to take evasive actions to avoid the collision between his vehicle and the bus… . Accordingly, the Supreme Court should have denied the motion and cross motion without regard to the sufficiency of the defendants’ opposition papers … . Mark v New York City Tr. Auth., 2017 NY Slip Op 03940, 2nd Dept 5-17-17

 

NEGLIGENCE (PLAINTIFF, WHO HAD THE RIGHT OF WAY, DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS BUS-CAR COLLISION CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/TRAFFIC ACCIDENTS (PLAINTIFF, WHO HAD THE RIGHT OF WAY, DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS BUS-CAR COLLISION CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/COMPARATIVE FAULT (TRAFFIC ACCIDENTS, PLAINTIFF, WHO HAD THE RIGHT OF WAY, DID NOT DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT IN THIS BUS-CAR COLLISION CASE, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED

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