Opinion
8248 Index 306555/12
01-29-2019
Juliette AYALA, Plaintiff–Appellant, v. James M. PASCARELLI, et al., Defendants–Respondents.
Ephrem J. Wertenteil, New York, for appellant. Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondents.
Ephrem J. Wertenteil, New York, for appellant.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondents.
Renwick, J.P., Richter, Mazzarelli, Webber, Kern, JJ.
Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about August 15, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff made a prima facie showing of negligence on the part of defendant Pascarelli by submitting Pascarelli's deposition testimony, which stated that the accident at issue occurred when he moved the backhoe into a lane of moving traffic (see Vehicle and Traffic Law § 1163[a] ; Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 [1st Dept. 2009] ). Plaintiff was not required to demonstrate her own freedom from comparative negligence nor to show that defendants' negligence was the sole proximate cause to be entitled to summary judgment as to defendants' liability (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ; Derix v. Port Auth. of N.Y. & N.J., 162 A.D.3d 522, 79 N.Y.S.3d 146 [1st Dept. 2018] ; Bermeo v. Time Warner Entertainment Co., 162 A.D.3d 404, 74 N.Y.S.3d 861 [1st Dept. 2018] ).