Furthermore, the plaintiff failed to meet his burden of establishing that the affirmative defense based on the emergency doctrine of the defendants NYCTA, MTA Bus, and MTA was "without merit as a matter of law" (Edwards v Walsh, 169 A.D.3d 865, 870 [internal quotation marks omitted]; see Vargas v Town of Huntington, 206 A.D.3d 1034, 1036; Freder v Costello Indus., Inc., 162 A.D.3d 984, 987-988). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was pursuant to CPLR 3211(b) to dismiss that affirmative defense.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries" (Montalvo v Cedeno, 170 A.D.3d 1166, 1167; see Flores v Rubenstein, 175 A.D.3d 1490) . A court deciding a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party (see Jacobsen v New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833; Tucubal v National Express Tr. Corp., 209 A.D.3d 788, 789; Vargas v Town of Huntington, 206 A.D.3d 1034, 1035). Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law.
The defendants appeal. A court deciding a motion for summary judgment must view the evidence in the light most favorable to the nonmoving party (seeJacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 ; Vargas v. Town of Huntington, 206 A.D.3d 1034, 1035, 170 N.Y.S.3d 616 ; Sayed v. Aviles, 72 A.D.3d 1061, 1062, 900 N.Y.S.2d 122 ). Here, contrary to the Supreme Court's determination, the parties’ completely divergent accounts of the accident presented triable issues of fact, precluding an award of summary judgment to the plaintiff.
Turning to the cross-motion, "[l]eave [to amend a pleading] should be granted, in the absence of prejudice or surprise to the opposing party, unless the proposed amendment is palpably insufficient or patently devoid of merit" (Vargas v Town of Huntington, 206 A.D.3d 1034, 1036 [2d Dept 2022]). Here, the Hersko defendants cannot claim surprise or prejudice to the proposed second amended complaint to the extent it includes allegations as to the fourth loan and further expounds the facts and circumstances surrounding the making of the three other loans.