Opinion
06-15-2016
Melina ROBERTS, appellant, v. Yehuda M. ZIRKIND, et al., respondents.
Appell & Parrinelli, New York, N.Y. (John J. Appell of counsel), for appellant. James G. Bilello & Associates (Russo & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for respondents.
Appell & Parrinelli, New York, N.Y. (John J. Appell of counsel), for appellant.
James G. Bilello & Associates (Russo & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for respondents.
MARK C. DILLON, J.P., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, and FRANCESCA E. CONNOLLY, JJ.
Opinion In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (King, J.), dated October 14, 2015, which denied her motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
On November 8, 2012, the plaintiff was crossing East New York Avenue at its intersection with Brooklyn Avenue in Brooklyn, when she was struck by a motor vehicle owned by the defendant Yehuda M. Zirkind and operated by the defendant Sara Zirkind (hereinafter the defendant driver), which was turning left from Brooklyn Avenue onto East New York Avenue. In 2013, the plaintiff commenced this action against the defendants to recover damages for personal injuries. After the completion of discovery, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court denied the motion. The plaintiff appeals.
A plaintiff in a personal injury action who moves for summary judgment on the issue of liability has the burden of establishing, prima facie, both that the defendant was negligent and that he or she was free from comparative fault (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18, 22, 22 N.Y.S.3d 75 ; Matos v. Tai, 124 A.D.3d 848, 998 N.Y.S.2d 905 ; Adams v. Bruno, 124 A.D.3d 566, 1 N.Y.S.3d 280 ), since there can be more than one proximate cause of an accident (see Adams v. Bruno, 124 A.D.3d at 566, 1 N.Y.S.3d 280 ). The issue of comparative fault is generally a question for the jury to decide (see Rodriguez v. Klein, 116 A.D.3d 939, 983 N.Y.S.2d 851 ; Regans v. Baratta, 106 A.D.3d 893, 965 N.Y.S.2d 171 ; Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 959 N.Y.S.2d 270 ).
In support of her motion for summary judgment on the issue of liability, the plaintiff failed to establish, prima facie, that she exercised due care in crossing the street (see Thoma v. Ronai, 82 N.Y.2d at 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Haberman v. Burke, 116 A.D.3d 921, 983 N.Y.S.2d 627 ; Garrido v. Puente, 114 A.D.3d 722, 723, 979 N.Y.S.2d 844 ; Melchiorre v. Dreisch, 95 A.D.3d 845, 846, 942 N.Y.S.2d 892 ; Day v. MTA Bus Co., 94 A.D.3d 940, 942 N.Y.S.2d 172 ). Thus, the plaintiff failed to eliminate all triable issues of fact as to whether she was free from comparative fault in the happening of the accident. Since the plaintiff failed to meet her prima facie burden, we need not consider the sufficiency of the defendants' opposition papers (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 ). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability.