Opinion
04-19-2017
Veveline HOLLIS, etc., appellant, v. William L. MARINELLI, et al., respondents.
Bartels & Feureisen, LLP, White Plains, NY (Michael Fahey of counsel), for appellant. Law Office of Marc D. Orloff, P.C., Goshen, NY (Dennis J. Mahoney III of counsel), for respondents.
Bartels & Feureisen, LLP, White Plains, NY (Michael Fahey of counsel), for appellant.
Law Office of Marc D. Orloff, P.C., Goshen, NY (Dennis J. Mahoney III of counsel), for respondents.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBella, J.), dated September 8, 2015, which denied her motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is granted.
"To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, since there can be more than one proximate cause of an accident" (Ramos v. Bartis, 112 A.D.3d 804, 804, 977 N.Y.S.2d 315 [citations omitted]; see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Lezcano–Correa v. Sunny's Limousine Serv., Inc., 145 A.D.3d 766, 43 N.Y.S.3d 129 ; Gomez v. Novak, 140 A.D.3d 831, 831–832, 32 N.Y.S.3d 623 ). Where the plaintiff has established her or his prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault (see Zhu v. Natale, 131 A.D.3d 607, 608, 15 N.Y.S.3d 204 ; Brown v. Mackiewicz, 120 A.D.3d 1172, 992 N.Y.S.2d 314 ; Ramos v. Bartis, 112 A.D.3d at 804, 977 N.Y.S.2d 315 ).
Here, the evidence submitted by the plaintiff in support of her motion for summary judgment on the issue of liability, which included, among other things, a digital video disc containing footage of the accident, demonstrated, prima facie, that the defendant driver was negligent in failing to yield the right-of-way to the plaintiff's decedent, who was crossing the street within a crosswalk with the traffic light in her favor when she was struck by the defendants' vehicle as it attempted to make a left turn, and that the plaintiff's decedent was free from comparative fault (see Lezcano–Correa v. Sunny's Limousine Serv., Inc., 145 A.D.3d 766, 43 N.Y.S.3d 129 ; Gomez v. Novak, 140 A.D.3d at 831–832, 32 N.Y.S.3d 623 ; Lesaldo v. Dabas, 140 A.D.3d 708, 709, 32 N.Y.S.3d 321 ; cf. Castiglione v. Kruse, 27 N.Y.3d 1018, 32 N.Y.S.3d 579, 52 N.E.3d 243 ). In opposition, the defendants failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability.