Wilson v. Rosedom

A driver who has the right-of-way is entitled to anticipate that the other driver will obey traffic laws which require him or her to yield (see Vehicle and Traffic Law § 1141; Kann v Maggies Paratransit Corp., 63 AD3d 792, 793 [2009]; Moreno v Gomez, 58 AD3d 611, 612 [2009]; Palomo v Pozzi, 57 AD3d 498, 498 [2008]; Gabler v Marly Bldg. Supply Corp., 27 AD3d 519, 520 [2006]; Moreback v Mesquita, 17 AD3d 420, 421 [2005]). Moreover, a driver is negligent if he or she failed to see that which, through the proper use of senses, should have been seen (see Laino v Lucchese, 35 AD3d 672, 672 [2006]; Berner v Koegel, 31 AD3d 591, 592 [2006]; Bongiovi v Hoffman, 18 AD3d 686, 687 [2005]; Bolta v Lohan, 242 AD2d 356 [1997]). At the same time, a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection (see Cox v Nunez, 23 AD3d 427, 427 [2005]). “There can be more than one proximate cause of an accident” (id.), and the issue of comparative negligence is generally a question for the jury to decide (see Sokolovsky v Mucip, Inc., 32 AD3d 1011 [2006]; see Rios v Johnson V.B.C., 17 AD3d 654, 656 [2005]).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law. However, in opposition, the affidavit of the defendant Keith Rosedom raised triable issues of fact, including, but not limited to, which vehicle lawfully entered the intersection first.

*971Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability. Mastro, J.E, Angiolillo, BalMn, Lott and Miller, JJ., concur.