Opinion
2012-04-17
Alfredo VILLA, appellant, v. Katherine LEANDROU, respondent.
Charles Wisell, Jackson Heights, N.Y., for appellant. Mendolia & Stenz (Cuomo, LLC, New York, N.Y. [Sherri A. Jayson], of counsel), for respondent.
Charles Wisell, Jackson Heights, N.Y., for appellant. Mendolia & Stenz (Cuomo, LLC, New York, N.Y. [Sherri A. Jayson], of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated June 2, 2011, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
As properly determined by the Supreme Court, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law ( see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). The proof submitted by the plaintiff in support of his motion failed to establish, as a matter of law, that he was free from comparative negligence ( see Roman v. A1 Limousine, Inc., 76 A.D.3d 552, 907 N.Y.S.2d 251; McFadden v. Bruno, 37 A.D.3d 177, 829 N.Y.S.2d 74; Scibelli v. Hopchick, 27 A.D.3d 720, 810 N.Y.S.2d 924; Wallace v. Dubin, 20 A.D.3d 412, 798 N.Y.S.2d 506; Valore v. McIntosh, 8 A.D.3d 662, 779 N.Y.S.2d 782; Eastmond v. Wen Po Wong, 300 A.D.2d 344, 751 N.Y.S.2d 767). The failure to make such a showing requires the denial of the plaintiff's motion for summary judgment, regardless of the sufficiency of the defendant's 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.