        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

449
CA 14-01730
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, VALENTINO, AND WHALEN, JJ.


SUSAN M. COFFED, AS ADMINISTRATOR OF THE ESTATE
OF JAMES B. COFFED, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOHN N. MCCARTHY AND GASPERINO F. FULFARO,
DEFENDANTS-APPELLANTS.


ADAMS, HANSON, REGO, KAPLAN & FISHBEIN, WILLIAMSVILLE (NICOLE B.
PALMERTON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

BROWN CHIARI LLP, LANCASTER (NELSON E. SCHULE, JR., OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Henry J.
Nowak, Jr., J.), entered June 18, 2014. The order denied defendants’
motion for summary judgment dismissing plaintiff’s complaint.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs, defendants’ motion is granted, and the
complaint is dismissed.

     Memorandum: Plaintiff, as administrator of the estate of her
husband (decedent), commenced this action seeking damages for fatal
injuries sustained by decedent when the bicycle he was riding collided
with a dump truck operated by John N. McCarthy (defendant) and owned
by defendant Gasperino F. Fulfaro. Defendant had been traveling
eastbound on Walden Avenue in the Village of Lancaster and was
attempting to turn right onto Sheldon Avenue. Decedent was also
traveling eastbound on Walden Avenue and was attempting to proceed
across Sheldon Avenue on his bicycle. Several witnesses, including
defendant, stated that the traffic signal controlling the intersection
was red for eastbound traffic on Walden Avenue at the time of the
accident. Although defendant initially told the police that the
signal was green in his favor, he later explained that he was “very
confused and upset” when he made that statement, and we agree with
defendants that the record establishes as a matter of law that the
signal was red.

     Defendants contend that Supreme Court erred in denying their
motion seeking summary judgment dismissing the complaint on the ground
that decedent’s failure to stop at the red light was the sole
proximate cause of the accident. We agree. Defendants established
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                                                         CA 14-01730

that defendant came to a complete stop at the red light and cautiously
entered the intersection to make a legal right turn (see Vehicle and
Traffic Law § 1111 [d] [2] [b]; see generally Barile v Carroll, 280
AD2d 988, 988), that defendant was unable to see decedent approaching
the intersection (see generally Wallace v Barody, 124 AD3d 1172, 1173;
Barile, 280 AD2d at 988-989), and that decedent was negligent as a
matter of law in proceeding into the intersection against the red
light (see § 1111 [d] [1]; McLeod v Taccone, 122 AD3d 1410, 1411;
Shapiro v Munoz, 28 AD3d 638, 638). We therefore conclude that
defendants “met their initial burden of establishing that defendant
was operating his vehicle in a lawful and prudent manner and that
there was nothing [he] could have done to avoid the collision” (Heltz
v Barratt, 115 AD3d 1298, 1299, affd 24 NY3d 1185 [internal quotation
marks omitted]). As a bicyclist, decedent was required to obey the
traffic signal (see § 1231; Joannis v Cahill, 71 AD3d 1437, 1438), and
thus was not “lawfully using the intersection” at the time of accident
(§ 1111 [d] [2] [b]). We reject plaintiff’s contention that
decedent’s failure to obey the traffic signal may have been excusable
because of sun glare (see generally Lifson v City of Syracuse, 17 NY3d
492, 498).

     In opposition to the motion, plaintiff failed to raise a triable
issue of fact. Even assuming, arguendo, that plaintiff’s opposing
papers sufficiently preserved for our review her contention on appeal
concerning the allegedly inoperable condition of the right rear turn
signal on defendant’s truck, we conclude that the condition of that
turn signal was not a proximate cause of the accident (see generally
Velez v Hurley, 264 AD2d 513, 514-515). The record establishes that
there was an operable right turn signal on the truck’s dump box that
was activated and would have been visible from behind the truck, and
further establishes that decedent was riding with his head down and
not paying attention to his surroundings.

     All concur except CENTRA and WHALEN, JJ., who dissent and vote to
affirm in the following memorandum: We respectfully dissent.
“Viewing the evidence in the light most favorable to the non-moving
party, as we must . . . , we conclude that there are issues of fact
that preclude summary judgment” (Russo v YMCA of Greater Buffalo, 12
AD3d 1089, 1089, lv dismissed 5 NY3d 746). We would therefore affirm
the order denying defendants’ motion for summary judgment dismissing
the complaint.

     At the outset, we acknowledge that decedent was “subject to all
of the duties applicable to the driver of a vehicle” pursuant to
Vehicle and Traffic Law § 1231, and that defendants submitted evidence
that decedent violated Vehicle and Traffic Law § 1111 (d) (1) by
proceeding into the intersection against the red light. Plaintiff,
however, submitted evidence concerning the position of the bicycle
after the accident that raised an issue of fact whether decedent
proceeded into the intersection at all, thereby raising an issue of
fact whether he violated the statute (see Sayed v Aviles, 72 AD3d
1061, 1062-1063).

     Even assuming, arguendo, that decedent was negligent and that his
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                                                         CA 14-01730

negligence contributed to the accident, we conclude that a jury should
resolve the issue whether decedent’s negligence was the sole proximate
cause of the accident. “ ‘There can be more than one proximate cause
of an accident’ . . . , and the issue of comparative negligence is
generally a question for the jury to decide” (Todd v Godek, 71 AD3d
872, 872). Here, there was evidence that would support a finding that
John N. McCarthy (defendant) was negligent in his operation of the
dump truck and that his negligence contributed to the accident.
Defendant had an obligation to “ ‘see what should be seen and to
exercise reasonable care under the circumstances to avoid an
accident’ ” (Cupp v McGaffick, 104 AD3d 1283, 1284), including in
particular a collision with a bicyclist (see Vehicle and Traffic Law §
1146 [a]). Defendant testified that he saw decedent in the bicycle
lane a mile before the intersection where the collision occurred.
Even if we credit defendant’s further testimony that he did not see
decedent immediately before the accident, we conclude that triable
issues of fact remain whether defendant “failed to see what was there
to be seen through the proper use of his senses” (Espiritu v Shuttle
Express Coach, Inc., 115 AD3d 787, 789). In addition, it is
undisputed that there was a bicycle lane to defendant’s right as he
drove on Walden Avenue toward the intersection, and a jury should
determine whether, in the exercise of due care, defendant should have
anticipated that a bicyclist would be in the bicycle lane (see Colpan
v Allied Cent. Ambulette, Inc., 97 AD3d 776, 777-778).

     Finally, we cannot agree with the majority’s conclusion that the
inoperable condition of the truck’s rear turn signal was not a
proximate cause of the accident as a matter of law. That conclusion
“requires the resolution of factual inferences in favor of defendants,
which is improper on a motion for summary judgment” (Morris v Lenox
Hill Hosp., 232 AD2d 184, 185, affd 90 NY2d 953).




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
