Opinion
No. 2023-10861 Index No. 521152/21
11-27-2024
Lu Yan Li, appellant, v. Yong Hua Zhen, respondent.
Michael A. Cervini (Diamond and Diamond LLC, Brooklyn, NY [Stuart Diamond], of counsel), for appellant. Hannum Feretic Prendergast & Merlino, LLC, New York, NY (Marla Miller Ostrover and Paul Golden of counsel), for respondent.
Michael A. Cervini (Diamond and Diamond LLC, Brooklyn, NY [Stuart Diamond], of counsel), for appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York, NY (Marla Miller Ostrover and Paul Golden of counsel), for respondent.
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER DEBORAH A. DOWLING JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated September 6, 2023. The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing so much of the defendant's first affirmative defense as alleged culpable conduct and comparative negligence.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's motion which was for summary judgment on the issue of liability, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff commenced this action against the defendant to recover damages for personal injuries that she alleged she sustained when the defendant's vehicle ran over her right foot as she attempted to cross a street. The plaintiff moved for summary judgment on the issue of liability and dismissing so much of the defendant's first affirmative defense as alleged culpable conduct and comparative negligence. The defendant opposed the motion. In an order dated September 6, 2023, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.
"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). "To be entitled to partial summary judgment a plaintiff does not bear the... burden of establishing... the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 N.Y.3d at 324-325; see Hartell v Shaukat, 227 A.D.3d 963, 964). Nonetheless, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing the defendant's affirmative defense of comparative negligence (see Hai Ying Xiao v Martinez, 185 A.D.3d 1014, 1014-1015; Wray v Galella, 172 A.D.3d 1446, 1447).
Here, contrary to the Supreme Court's determination, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of, inter alia, her affidavit, which demonstrated that she was struck by the defendant's vehicle while walking within an unmarked crosswalk, that she had observed the conditions of approaching traffic before she began to cross, and that the defendant was negligent in failing to yield the right-of-way to the plaintiff when she was approximately three quarters of the way across the street (see Gandarillas v EAN Holdings, LLC, 152 A.D.3d 571, 572; Friedman v Rogerson, 131 A.D.3d 1204, 1204-1205). In opposition, the defendant, who did not submit his own affidavit or an affidavit from a person with personal knowledge of the facts, failed to raise a triable issue of fact (see Maliakel v Morio, 185 A.D.3d 1018, 1019).
The plaintiff, however, failed to establish her prima facie entitlement to judgment as a matter of law dismissing so much of the defendant's first affirmative defense as alleged culpable conduct and comparative negligence (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The plaintiff's submissions failed to provide sufficient details to demonstrate, prima facie, that she was not comparatively at fault in causing the accident and that the defendant's negligence was the sole proximate cause of the accident (see Karim v Proline Rental, LLC, 222 A.D.3d 851, 853; Andrade-Fuentes v Iglesia Cristiana Valle De Jesus, Inc., 219 A.D.3d 1286, 1288; Miles v Walsh, 195 A.D.3d 924, 925).
The parties' remaining contentions are either not properly before this Court or without merit.
DUFFY, J.P., MILLER, DOWLING and TAYLOR, JJ., concur.