Opinion
No. 2022-01901 Index No. 711901/20
12-13-2023
Rodney Richard Garutti, respondent, v. Kim Co Refrigeration Corp., et al., appellants.
Hoffman Roth & Matlin, LLP, New York, NY (Tillie S. Mirman of counsel), for appellants. Cardali & Associates, P.C. (Hogan & Cassell, LLP, Jericho, NY [Michael Cassell], of counsel), for respondent.
Hoffman Roth & Matlin, LLP, New York, NY (Tillie S. Mirman of counsel), for appellants.
Cardali & Associates, P.C. (Hogan & Cassell, LLP, Jericho, NY [Michael Cassell], of counsel), for respondent.
BETSY BARROS, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Mojgan C. Lancman, J.), entered March 8, 2022. The order granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence is denied.
In December 2019, at or near the intersection of Lexington Avenue and 37th Street in Manhattan, the plaintiff, who was riding an electric bicycle, was involved in an accident with a vehicle operated by the defendant Hukumdar Narine and owned by his employer, the defendants Kim Co Refrigeration Corp. and K.I.M. Co. Refrigeration Corp. The plaintiff thereafter commenced this action against the defendants to recover damages for personal injuries, alleging that the defendants were negligent in that they, inter alia, violated various sections of the Vehicle and Traffic Law, including sections 1146 and 1163.
Subsequently, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence. By order entered March 8, 2022, the Supreme Court granted the plaintiff's motion. The defendants appeal.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033-1034; see Rodriguez v City of New York, 31 N.Y.3d 312; Marazita v City of New York, 202 A.D.3d 951). A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case against a defendant on the issue of that defendant's liability (see Rodriguez v City of New York, 31 N.Y.3d at 312; see e.g. Poon v Nisanov, 162 A.D.3d 804). "[However], the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence" (Ramirez v Wangdu, 195 A.D.3d 646, 646; see Kirby v Davis, 208 A.D.3d 1171, 1173; Sebagh v Capital Fitness, Inc., 202 A.D.3d 853; Poon v Nisanov, 162 A.D.3d at 808). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). On a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (see Sage v Taylor, 195 A.D.3d 971; Gobin v Delgado, 142 A.D.3d 1134, 1135).
Here, the evidence proffered in support of the plaintiff's motion presented varying accounts of how the accident occurred. Assuming the facts to be as set forth in Narine's deposition testimony, which was submitted in support of the plaintiff's motion, triable issues of fact exist as to whether Narine was negligent at all in the happening of the accident and as to whether the plaintiff was negligent. Contrary to the Supreme Court's determination, that portion of Narine's deposition testimony concerning how the accident occurred did not flatly contradict any statement attributable to him in the certified police accident report, which was also submitted in support of the plaintiff's motion, and was not otherwise impermissibly tailored to create a feigned issue of fact (see Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 N.Y.3d 1048, 1049; Valentin v Parisio, 119 A.D.3d 854, 855; Jahangir v Logan Bus Co., Inc., 89 A.D.3d 1064; cf. Nass v City of New York, 210 A.D.3d 684, 685).
Since the plaintiff did not demonstrate his prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied his motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence without regard to the sufficiency of the evidence proffered by the defendants in opposition (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
BARROS, J.P., MALTESE, DOWLING and VOUTSINAS, JJ., concur.