Opinion
2019–03207 Index No. 18638/11
03-02-2022
Chan Pok KIM, et al., appellants, v. Manuel J. JURADO, et al., respondents.
Fellows Hymowitz, P.C., New City, N.Y. (Steven R. Hymowitz, Beth S. Gereg, and Michael H. Zhu of counsel), for appellants. Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Kristen A. Carroll and Nicholas Hurzeler of counsel), for respondents.
Fellows Hymowitz, P.C., New City, N.Y. (Steven R. Hymowitz, Beth S. Gereg, and Michael H. Zhu of counsel), for appellants.
Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Kristen A. Carroll and Nicholas Hurzeler of counsel), for respondents.
MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, REINALDO E. RIVERA, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated January 18, 2019. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The injured plaintiff allegedly sustained personal injuries when, as a passenger in an ambulette that was owned by the defendant Christian Ambulette, Inc., and operated by the defendant Manuel J. Jurado, that ambulette was struck by an unidentified second vehicle while traveling on the Brooklyn Queens Expressway in Queens. The injured plaintiff, and her husband suing derivatively, commenced the instant action, inter alia, to recover damages for personal injuries. After discovery was completed, the defendants moved for summary judgment dismissing the complaint on the grounds that they were not at fault in the happening of the accident and that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The Supreme Court granted the defendants' motion on the ground that they were not at fault in the happening of the accident. The plaintiffs appeal.
A "defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Aponte v. Vani, 155 A.D.3d 929, 930, 64 N.Y.S.3d 123 [internal quotation marks omitted]; see Gaudio v. City of New York, 189 A.D.3d 1546, 1547–1548, 140 N.Y.S.3d 102 ; Gobin v. Delgado, 142 A.D.3d 1134, 1135, 38 N.Y.S.3d 63 ; Estate of Cook v. Gomez, 138 A.D.3d 675, 30 N.Y.S.3d 148 ; Baulete v. L & N Car Serv., Inc., 134 A.D.3d 753, 22 N.Y.S.3d 86 ; see also Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ). "There can be more than one proximate cause of an accident" ( Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604 ; see Jones v. Vialva–Duke, 106 A.D.3d 1052, 966 N.Y.S.2d 187 ), and "[g]enerally, it is for the trier of fact to determine the issue of proximate cause" ( Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, Inc., 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ; Riccio v. Kid Fit, Inc., 126 A.D.3d 873, 5 N.Y.S.3d 521 ; Scala v. Scala, 31 A.D.3d 423, 424, 818 N.Y.S.2d 151 ).
Here, in support of their motion, the defendants relied on, inter alia, the deposition transcripts of the injured plaintiff and Jurado. That evidence, viewed in the light most favorable to the plaintiffs (see Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 ), established, prima facie, that the defendants were not at fault in the happening of the accident (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Pilgrim v. Campoverde–Bravo, 175 A.D.3d 1333, 1334, 105 N.Y.S.3d 900 ). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether Jurado was at fault in the happening of the accident (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint on the ground that they were not at fault in the happening of the accident.
In light of our determination we need not address the defendants' remaining contention.
DILLON, J.P., BRATHWAITE NELSON, RIVERA and WOOTEN, JJ., concur.