LaForge v. All American Car Rental, Inc.

Order unanimously reversed on the law with costs and defendants’ motion denied. Memorandum: Plaintiff Marc LaForge, a passenger in a van driven by defendant Normandin and owned by defendant Touchette, was seriously injured when Normandin drove the van into an intersection at Bear and Spencer Streets in Syracuse and was hit by a van driven by defendant Papa. Although it is undisputed that Normandin drove through a red light, the court erred in granting defendant Papa’s motion for summary judgment because there is a question of fact whether defendant Papa could have avoided or otherwise minimized the accident (see, Shea v Judson, 283 NY 393; cf., Viegas v Esposito, 135 AD2d 708, lv denied 72 NY2d 801; Mansfield v Graff, 47 AD2d 581). The court also erred in granting defendant City of Syracuse’s motion for summary judgment. Defendant Normandin testified at his deposition that he did not see an approaching vehicle on the right because there were many trees at the intersection. Plaintiffs’ engineer averred that, in his opinion, there was a reasonable probability that the accident could have been avoided or minimized had the city properly maintained the intersection. The city has conceded that it did not maintain the intersection at the date of the accident. Viewing the evidence in the light most favorable to plaintiffs, it cannot be said as a matter of law that the city’s failure to maintain the intersection could not have been a contributing cause of the accident (see, Alexander v Eldred, 63 NY2d 460, 467-469). (Appeal from order of Supreme Court, Onondaga County, Miller, J. — summary judgment.) Present — Callahan, J. P., Denman, Pine, Balio and Lawton, JJ.