Deshaies v. Prudential Rochester Realty , 755 N.Y.S.2d 155 ( 2003 )

Appeal from that part of an order of Supreme Court, Monroe County (Frazee, J.), entered July 16, 2001, that denied the cross motion of defendant Cindy L. Gilchrist for summary judgment dismissing the complaint against her.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs.

Memorandum: Plaintiffs decedent was killed when the vehicle that she was driving collided with a vehicle driven by defendant Cindy L. Gilchrist. According to Gilchrist, her vehicle was propelled into decedent’s vehicle by a vehicle driven by defendant Mary B. Cirilla, who failed to stop at a stop sign. Supreme Court, inter alia, granted plaintiffs motion for partial summary judgment on liability against, inter alia, Cirilla in a separate action and in this action denied the cross motion of Gilchrist for summary judgment dismissing the complaint against her. Gilchrist appeals, contending that the sole cause of the accident was Cirilla’s failure to heed the stop sign. We affirm.

It is well established that there can be more than one proximate cause of an accident, and here the fact that Cirilla failed to stop at the stop sign is not dispositive of the issue whether Gilchrist failed to exercise reasonable care when proceeding into the intersection despite her admitted awareness that Cirilla was not going to stop at the stop sign (see Doctor v Juliana, 277 AD2d 1013). According to the deposition testimony of Gilchrist, she saw the Cirilla vehicle before either of their vehicles entered the intersection, she never saw the Cirilla vehicle slow down, and she looked away from the Cirilla vehicle before entering the intersection. Moreover, Gilchrist testified that she never sounded her horn or took any other evasive action before the collision. Even assuming, arguendo, that Gilchrist met her initial burden on the cross motion, we conclude that plaintiff raised triable issues of fact whether Gilchrist was exceeding the posted speed limit and whether she “had a sufficient opportunity to take some evasive action in an effort to avoid the accident” (King v Washburn, 273 AD2d 725, 726).

All concur except Scudder and Lawton, JJ., who dissent and vote to reverse the order insofar as appealed from in accordance with the following memorandum.