Opinion
2015-04-08
Nicholas SANCHEZ, appellant, v. Jayson MAPP, et al., respondents.
Mastro, J.P., Austin, Cohen and Barros, JJ., concur.
Sobo & Sobo LLP, Middletown, N.Y. (Brett Peter Linn and Gus P. Fotopoulos of counsel), for appellant. Dwyer & Taglia, New York, N.Y. (Joshua T. Reece of counsel), for respondents.
WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Orange County (Sciortino, J.), dated March 21, 2014, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
In support of his motion for summary judgment on the issue of liability, the plaintiff submitted, among other things, a transcript of the deposition testimony of the defendant Jayson Mapp. Mapp testified at his deposition that the plaintiff's vehicle, which was 1 to 1 1/2 car lengths in front of his vehicle, moved to the left, touching the double-yellow line, and then suddenly turned right, without properly signaling, to make a right turn into a driveway ( seeVehicle and Traffic Law §§ 1163[b]; 1166[a] ). The front of Mapp's vehicle struck the side of the plaintiff's vehicle as it was turning into the driveway.
There can be more than one proximate cause of an accident. Accordingly, to prevail on his motion for summary judgment on the issue of liability, 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” (Kaur v. Demata, 123 A.D.3d 772, 773, 999 N.Y.S.2d 99; see Thoma v. Ronai, 82 N.Y.2d 736, 738, 602 N.Y.S.2d 323, 621 N.E.2d 690). Here, based upon the defendant's testimony submitted in support of the plaintiff's motion, the plaintiff failed to eliminate triable issues of fact as to whether he was free from comparative fault.
Contrary to the plaintiff's contention, he was not entitled to an inference of negligence arising out of a rear-end collision since his vehicle was not struck in the rear, and was not stopped or stopping ( cf. Le Grand v. Silberstein, 123 A.D.3d 773, 999 N.Y.S.2d 96; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 670–671, 974 N.Y.S.2d 563; Pollard v. Independent Beauty & Barber Supply Co., 94 A.D.3d 845, 846, 942 N.Y.S.2d 360).
In light of the plaintiff's failure to meet his prima facie burden, we need not consider the sufficiency of the papers submitted in opposition to the plaintiff's motion ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability.