                             State of New York
                      Supreme Court, Appellate Division
                         Third Judicial Department
Decided and Entered: February 25, 2016                      521137
________________________________

CRISTINA RIVERA,
                       Respondent,
         v                                     MEMORANDUM AND ORDER

DAVID R. FRITTS et al.,
                    Appellants.
________________________________


Calendar Date:      January 6, 2016

Before:      McCarthy, J.P., Garry, Rose and Devine, JJ.

                                __________


      Law Office of Theresa J. Puleo, Syracuse (John F. Pfeifer
of counsel), for appellants.

      Greene & Reid, PLLC, Syracuse (Eugene W. Lane of counsel),
for respondent.

                                __________


Garry, J.

      Appeal from an order of the Supreme Court (Rumsey, J.),
entered February 11, 2015 in Cortland County, which denied
defendants' motion for summary judgment dismissing the complaint.

      Plaintiff was driving a motor vehicle westbound on Route 90
in the Village of Homer, Cortland County, when she came upon a
tractor trailer traveling in front of her driven by defendant
David R. Fritts.1 Fritts testified that he was driving at a
speed of approximately 35 miles per hour in a 55 mile-per-hour
zone due to the steep incline of Route 90, and the flashing


     1
        It is undisputed that Fritts was acting within the scope
of his employment at the time of the incident.
                              -2-                521137

hazard lights on his vehicle were engaged. After plaintiff had
followed Fritts' truck for about 10 minutes, Fritts slowed to
approximately 15 miles per hour and crossed over the fog line
onto the right shoulder of the roadway, preparing to make a left
turn onto Sweeney Road. Upon observing Fritts' vehicle moving
onto the shoulder, plaintiff attempted to pass, crossing over the
double yellow line that bisected the two-lane roadway and moving
into the oncoming lane. Fritts began to execute the left turn
before plaintiff had fully overtaken his vehicle, and the tractor
portion of Fritts' vehicle collided with the passenger side of
plaintiff's vehicle. The force of the collision caused
plaintiff's vehicle to be pushed into the ditch alongside the
roadway, and she suffered injuries. Thereafter, plaintiff
commenced this negligence action against Fritts and his employer,
defendant Harvey R. Hatfield, individually and/or doing business
as H. Hatfield Trucking. Defendants moved for summary judgment
dismissing the complaint and Supreme Court denied defendants'
motion. Defendants appeal.

      In order to succeed on their motion, defendants were
required to "make a prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact" (Alvarez
v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Baird v Gormley,
116 AD3d 1121, 1122 [2014]). In support of the motion,
defendants submitted, among other things, the deposition
testimony of plaintiff, Fritts and two nonparty witnesses. Taken
together, the evidence established that, just prior to the
collision, plaintiff crossed over a double yellow line and into
the oncoming lane in an effort to overtake Fritts' vehicle.
Plaintiff's stated reason for attempting to pass Fritts' vehicle
in a no passing zone was that his vehicle was moving "too slow"
and she believed that he was pulling over to permit her to pass.
The evidence of plaintiff's unexcused violation of the Vehicle
and Traffic Law was sufficient to establish that she was
negligent as a matter of law (see Vehicle and Traffic Law
§§ 1124, 1126 [a]; 1128 [d]; Baldwin v Degenhardt, 82 NY2d 867,
868 [1993]; compare Baker v Joyal, 4 AD3d 596, 597 [2004], lv
denied 2 NY3d 706 [2004]). Nevertheless, a firmly rooted tenet
of our negligence jurisprudence is that an accident may have more
than one proximate cause (see Sweet v Perkins, 196 NY 482, 485
                              -3-                521137

[1909]; Grant v Nembhard, 94 AD3d 1397, 1399 [2012]), and, upon
review, we agree with Supreme Court that defendants' submissions
failed to establish that plaintiff's negligence was the sole
proximate cause of the accident.

      Fritts acknowledged in his testimony that he was unaware of
whether there were any vehicles traveling behind him before he
moved his vehicle onto the right shoulder of the roadway. He
further conceded that he did not check his mirrors for traffic
before then executing the left turn, although it was his usual
practice to do so. Notably, "'[d]rivers have a duty to see what
should be seen and to exercise reasonable care under the
circumstances to avoid an accident'" (Smith v Allen, 124 AD3d
1128, 1130 [2015], quoting Singh v Avis Rent A Car Sys., Inc.,
119 AD3d 768, 769 [2014]; see Corina v Boys & Girls Club of
Schenectady, Inc., 82 AD3d 1477, 1478 [2011]). There was also
conflicting proof as to whether Fritts had activated his left
directional signal prior to the collision; Fritts and a nonparty
witness testified that the directional signal was engaged, while
plaintiff and another nonparty witness testified that they did
not see a directional signal. Viewing the evidence in the light
most favorable to plaintiff, the nonmoving party, we thus find
that Supreme Court properly determined that there were triable
issues of fact as to whether Fritts acted reasonably under the
circumstances and whether any negligence on his part was a
proximate cause of the accident (see O'Brien v Couch, 124 AD3d
975, 977 [2015]; Ruthinoski v Brinkman, 63 AD3d 900, 902 [2009];
Anderson v Miller, 263 AD2d 643, 644 [1999]; Premo v Lam, 222
AD2d 872, 873 [1995]). Thus, defendants' motion was properly
denied.

     McCarthy, J.P., Rose and Devine, JJ., concur.
                        -4-                  521137

ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
