Opinion
7335 Index 157635/16
10-16-2018
Theodore CHAN, Plaintiff–Appellant, v. Michael J. CHOI, et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. Russo & Tambasco, Melville (Yamile Al–Sullami of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.
Russo & Tambasco, Melville (Yamile Al–Sullami of counsel), for respondents.
Renwick, J.P., Tom, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about August 31, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, and the motion granted, without costs.
In support of his motion for partial summary judgment, plaintiff submitted an affidavit which established that defendant Choi was negligent in that he fell asleep at the wheel while driving a vehicle in which plaintiff was a passenger ( Barlow v. Hertz Corp., 160 A.D.2d 580, 581, 554 N.Y.S.2d 224 [1st Dept. 1990] ; see also Spivak v. Heyward, 248 A.D.2d 58, 679 N.Y.S.2d 156 [2d Dept. 1998] ; Kilburn v. Bush, 223 A.D.2d 110, 117, 646 N.Y.S.2d 429 [4th Dept. 1996] ). In opposition, defendant Choi submitted an affidavit that confirmed his own negligence in getting behind the wheel despite knowing he was too tired to drive, but argued that plaintiff was also at fault in connection with the accident. While the motion court denied the motion on the basis of plaintiff's possible comparative fault, subsequent case law has established that "plaintiff was not required to demonstrate his own freedom from comparative negligence to be entitled to summary judgment as to defendant's liability" ( Derix v. Port Auth. of N.Y. & N.J., 162 A.D.3d 522, 79 N.Y.S.3d 146 [1st Dept. 2018] ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 317–318, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ).