Beyer v. Sterling

2 Citing cases

  1. Estate of Cook v. Gomez

    2016 N.Y. Slip Op. 2612 (N.Y. App. Div. 2016)   Cited 48 times

    Here, CFLP established its prima facie entitlement to judgment as a matter of law by demonstrating that Carlos negligently entered the roadway from the parking lot without yielding the right-of-way to the decedent, and that such negligence was the sole proximate cause of the accident (see Vehicle and Traffic Law ยง 1143; Marcel v Sanders, 123 AD3d 1097; Desio v Cerebral Palsy Transp., Inc., 121 AD3d 1033; Abatzidis v Fenton, 116 AD3d 802, 802). CFLP further demonstrated via its submissions in support of its motion, which included a sworn statement Carlos gave to the police on the date of the accident, photos from the scene of the accident, and the deposition transcript of a police officer, that the placement of the sign was not a proximate cause of the accident. Indeed, these submissions established that there was a point at which Carlos could safely observe oncoming traffic heading east on Motor Parkway unimpeded by the sign (see Beyer v Sterling, 303 AD2d 701; Sorrentino v Wild, 224 AD2d 607; Murray v Schmidt, 203 AD2d 541). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the placement of the sign was a proximate cause of the accident.

  2. Velasquez v. Gomez

    44 A.D.3d 649 (N.Y. App. Div. 2007)   Cited 69 times

    The Supreme Court properly denied White's motion since White failed to establish her prima facie entitlement to summary judgment ( see Winegrad v New York Univ. Med. Ctn, 64 NY2d 851, 852). "[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense" ( George Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615). White merely pointed to gaps in the plaintiffs' proof instead of affirmatively demonstrating that she did not violate relevant portions of the Islip Town Code in maintaining her property or that such violations were not a proximate cause of the accident ( see Beyer v Sterling, 303 AD2d 701). Since White failed in the first instance to present a prima facie case entitling her to judgment as a matter of law, the sufficiency of the plaintiffs' opposition papers is not at is iue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 852). In addition, the Supreme Court properly denied the taxi defendants' cross motion since they also failed to establish their prima facie entitlement to summary judgment ( id.).