Opinion
2002-05442
Submitted February 18, 2003.
March 17, 2003.
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 26, 2002, which denied his motion for summary judgment dismissing the complaint.
Mead, Hecht, Conklin Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht and Sara Luca Salvi of counsel), for appellant.
James J. Killerlane (David Samel, New York, N.Y., of counsel), for respondents.
Before: GLORIA GOLDSTEIN, J.P., THOMAS A. ADAMS, SANDRA L. TOWNES, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint. The defendant failed to sustain his initial burden of demonstrating the absence of a triable issue of fact as to whether he exercised due care to avoid the subject accident (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Charles v. Ball, 291 A.D.2d 367; Ruocco v. Mulhall, 281 A.D.2d 406; Kiernan v. Hendrick, 116 A.D.2d 779, 781-782). The defendant's failure to make a prima facie showing of his entitlement to judgment as a matter of law required the denial of his motion, regardless of the sufficiency of the plaintiffs' opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).
GOLDSTEIN, J.P., ADAMS, TOWNES and CRANE, JJ., concur.