Opinion
2014-03-26
Kristen TRINGALI, plaintiff, v. Mary K. SIEBER, et al., defendants third-party plaintiffs-respondents; Patrick Morgan, third-party defendant-appellant.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), for third-party defendant-appellant. Boeggeman, George & Corde, P.C., White Plains, N.Y. (Karen A. Jockimo of counsel), for defendants third-party plaintiffs-respondents.
Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), for third-party defendant-appellant. Boeggeman, George & Corde, P.C., White Plains, N.Y. (Karen A. Jockimo of counsel), for defendants third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, the third-party defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated April 20, 2012, as denied his motion for summary judgment dismissing the third-party complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the third-party defendant's motion for summary judgment dismissing the third-party complaint. The third-party defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law, since the evidence submitted in support of his motion failed to establish that he was free from comparative fault, or that the alleged negligence of the defendant third-party plaintiff Mary K. Sieber was the sole proximate cause of the subject accident ( see generally Arias v. Tarar, 100 A.D.3d 668, 955 N.Y.S.2d 603;Camarillo v. Sandoval, 90 A.D.3d 593, 933 N.Y.S.2d 906;Cohn v. Khan, 89 A.D.3d 1052, 933 N.Y.S.2d 403;Ruthinoski v. Brinkman, 63 A.D.3d 900, 882 N.Y.S.2d 165). Specifically, the conflicting deposition testimony submitted by the third-party defendant in support of his motion revealed the existence of triable issues of fact as to the manner in which the accident occurred ( see Martin v. Cartledge, 102 A.D.3d 841, 958 N.Y.S.2d 452;Martinez v. Martinez, 93 A.D.3d 767, 941 N.Y.S.2d 189).
Since the third-party defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not examine the sufficiency of the papers submitted in opposition to the 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). RIVERA, J.P., LOTT, ROMAN and HINDS–RADIX, JJ., concur.