The Fourth Department, reversing Supreme Court, determined there was a question of fact whether defendant driver of the motorcycle (Baker) could have avoided this intersection traffic accident case. The motorcycle had the right-of-way and collided with defendants’ (Willow Bend’s) truck. Plaintiff was a passenger on the motorcycle. Willow Bend’s cross motion against the driver of the motorcycle (Baker Estate) should not have been dismissed:
We agree with the Willow Bend defendants that the court erred in granting that part of the motion seeking summary judgment dismissing the Willow Bend defendants’ cross claim. In moving for summary judgment, the Baker Estate had the initial burden of establishing, as a matter of law, that Baker “was operating [the motorcycle] in a lawful and prudent manner and that there was nothing that [Baker] could have done to avoid the collision” … . “[I]t is well settled that drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . “[U]nder the doctrine of comparative negligence, a driver who lawfully enters an intersection 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 the intersection” … . We conclude that the Baker Estate failed to meet that burden, inasmuch as its own submissions in support of the motion raised a triable issue of fact … .
Although the Baker Estate established that Baker had the right-of-way as he approached the intersection, the Baker Estate submitted the deposition testimony of Baker and plaintiff, who each testified that, before the collision, Baker applied his brakes but did not attempt to steer around the dump truck. Baker further testified that he did not use his horn. Viewed in the light most favorable to the Willow Bend defendants, that testimony raises an issue of fact whether Baker exercised reasonable care under the circumstances to avoid an accident … . Carroll v Willow Bend Farm LLC, 2020 NY Slip Op 00954, Fourth Dept 2-7-20