Gomez v. Hilfiger

In an action, inter alia, to recover damages for wrongful death, the defendant appeals from an order of the Supreme Court, Orange County (Horowitz, J.), dated January 22, 2007, which denied his motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The defendant satisfied his prima facie burden of establishing entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition thereto, by submitting the affidavits of the investigating officer and the accident investigator, the plaintiff raised triable issues of fact as to 729 whether the defendant exercised due care and observed traffic conditions before his vehicle proceeded into and through the intersection (see Bolta v Lohan, 242 AD2d 356 [1997]; Olsen v Baker, 112 AD2d 510 [1985]), and whether the defendant failed to see that which through the proper use of his senses he should have seen (see Weigand v United Traction Co., 221 NY 39, 42 [1917]; Baker v Nassau County Police Activity League, 265 AD2d 515, 516 [1999]; Bolta v Lohan, 242 AD2d at 356; see also Mascia v Cho Ho Leung, 282 AD2d 580 [2001]). The defendant’s remaining contention is without merit. Spolzino, J.P., Dillon, Angiolillo and Dickerson, JJ., concur.