                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   April 14, 2016                  521195
                                                       521393
________________________________

PATRICK J. VALIANDO et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
MICHELLE M. CATALFAMO et al.,
                    Respondents.
________________________________


Calendar Date:   February 17, 2016

Before:   McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.

                             __________


      Jacobowitz and Gubits, LLP, Walden (Kara J. Cavallo of
counsel), for appellants.

      Alan B. Brill, PC, Suffern (Lynn Beesecker, Cornwall, of
counsel), for respondents.

                             __________


Lynch, J.

      Appeals (1) from an order of the Supreme Court (Work, J.),
entered September 17, 2014 in Ulster County, which, among other
things, denied plaintiffs' motion for summary judgment on the
issue of liability, and (2) from a corrected order of said court,
entered May 22, 2015 in Ulster County, which, among other things,
denied plaintiffs' motion to renew.

      Plaintiff Patrick J. Valiando and his spouse, derivatively,
commenced this action seeking damages for injuries he sustained
when his vehicle – a dump truck towing a flatbed trailer carrying
a shed – collided with the vehicle driven by defendant Michelle
M. Catalfamo at the intersection of Plains Road and State Route
300 in the Town of Shawangunk, Ulster County. Immediately prior
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                                                 521393

to the collision, Valiando was traveling westbound on State Route
300; Catalfamo was traveling southbound on Plains Road. Travel
was controlled by a flashing yellow light on State Route 300 and
by a flashing red light on Plains Road. Following joinder of
issue, plaintiffs moved for summary judgment on the issue of
liability. Supreme Court agreed with defendants that there were
issues of fact with regard to Valiando's comparative negligence
and denied plaintiffs' motion for summary judgement. Plaintiffs
filed a motion to renew or reargue pursuant to CPLR 2221 (d) and
(e), and, in response, Supreme Court issued a corrected decision
and order, but did not change its determination. Plaintiffs now
appeal.

       As the driver approaching an intersection controlled by a
flashing yellow light, Valiando was obligated to proceed through
the intersection with caution (see Vehicle and Traffic Law § 1113
[b]; Rabenstein v Suffolk County Dept. of Pub. Works, 131 AD3d
1145, 1145-1146 [2015]; Colaruotolo v Crowley, 290 AD2d 863, 864
[2002]). Valiando testified at his examination before trial that
he was driving approximately 35 miles per hour down a hill on
State Route 300 towards the intersection with Plains Road. As he
approached the intersection, he looked to both the right and the
left, but did not see any vehicles until he saw Catalfamo's
vehicle in the intersection a "half a second" prior to the
collision. Catalfamo testified that she stopped before entering
the intersection but did not see Valiando's vehicle until she was
in the intersection and it was just a few feet away from her. As
it is not disputed that Catalfamo was obligated to stop before
proceeding into the intersection and to yield the right-of-way to
Valiando (see Vehicle and Traffic Law § 1113 [a]; Rabenstein v
Suffolk County Dept. of Pub. Works, 131 AD3d at 1145-1146; Horton
v Warden, 32 AD3d 570, 572 [2006]), we find that plaintiffs'
submissions were sufficient to demonstrate prima facie
entitlement to summary judgment as a matter of law on the issue
of liability.

      In opposition to plaintiffs' motion for summary judgment,
defendants claimed that there were issues of fact with regard to
whether Valiando used reasonable care prior to entering the
intersection. Reviewing the record in a light most favorable to
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defendants as the nonmoving party, as we must (see O'Brien v
Couch, 124 AD3d 975, 977 [2015]), we agree. There can be "more
than one proximate cause of an accident" (id. [internal quotation
marks and citation omitted]; see Rivera v Fritts, 136 AD3d 1249,
1251 [2016]). Here, although Valiando had the right-of-way, such
a driver "may nevertheless be found to have contributed to the
happening of the accident if he or she did not use reasonable
care to avoid the accident" (Rabenstein v Suffolk County Dept. of
Pub. Works, 131 AD3d at 1146). As noted by Supreme Court,
Valiando testified at his deposition that his view of Plains Road
on the side that Catalfamo entered the intersection was
obstructed by some trees and bushes. Similarly, Catalfamo
recalled at her deposition that when she stopped at the
intersection, her view from Plains Road towards the path of
Valiando's travel on State Route 300 was obstructed with
"shrubbery and such." She testified that she stopped at the
intersection approximately 10 feet from the stop sign, commented
to her passenger that the visibility was poor, then looked left
and right "a few times" before first inching, then driving into
the intersection. Catalfamo did not see Valiando's truck, which
she characterized as approaching "fast," until she was already in
the intersection. According to Valiando, the front passenger
side of his truck struck the driver's side of Catalfamo's car,
near the front wheel. Inasmuch as both drivers testified with
regard to trees and brush blocking the view at the intersection
of Plains Road and State Route 300, and in consideration of
Valiando's claim that he never saw Catalfamo's vehicle before she
entered the intersection, defendants have raised a factual
question with regard to whether Valiando failed to approach the
intersection with caution, and whether such failure was a
proximate cause of the collision (see id.; O'Brien v Couch, 124
AD3d at 977; compare Colaruotolo v Crowley, 290 AD2d at 864).

      Next, we find that Supreme Court properly denied
plaintiffs' motion to reargue and renew. "A motion for leave to
reargue . . . shall be based upon matters of fact or law
allegedly overlooked or misapprehended by the court in
determining the prior motion" (CPLR 2221 [d] [2]; see Matter of
Karnazes, 133 AD3d 1027, 1027-1028 [2015], appeal dismisseed ___
NY3d ___ [Apr. 5, 2016]). "A motion for leave to renew . . .
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                                                   521393

shall be based upon new[ly discovered] facts not offered on the
prior motion that would change the prior determination . . . and
. . . shall contain reasonable justification for the failure to
present such facts on the prior motion" (CPLR 2221 [e]). Here,
plaintiffs' motion was based on certain photographs and an
affidavit by a nonparty witness. Assuming, without deciding that
such evidence was newly discovered, it does not resolve the issue
of Valiando's comparative negligence. Similarly, on the motion
to reargue, which was granted, Supreme Court properly adhered to
its prior determination because, despite the corrected
description of Valiando's tesimony, these factual questions
remained.

     McCarthy, J.P., Egan Jr. and Rose, JJ., concur.



      ORDERED that the order and corrected order are affirmed,
with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
