Opinion
2016-09289, Index No. 3756/15.
10-25-2017
Volodymyr VOSKOBOINYK, respondent, v. Michael TREBISOVSKY, et al., appellants.
DeCicco, Gibbons & McNamara, P.C., New York, NY (Daniel J. McNamara and Brian J. McCall of counsel), for appellants. Banilov & Associates, P.C., Brooklyn, NY (Nick Banilov and Dean Delianites of counsel), for respondent.
DeCicco, Gibbons & McNamara, P.C., New York, NY (Daniel J. McNamara and Brian J. McCall of counsel), for appellants.
Banilov & Associates, P.C., Brooklyn, NY (Nick Banilov and Dean Delianites of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Baynes, J.), dated June 30, 2016, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
The plaintiff alleges that he sustained personal injuries when he was struck by the defendants' vehicle as he was crossing West 12th Street in Brooklyn. The plaintiff commenced this personal injury action against the defendants. The plaintiff moved for summary judgment on the issue of liability, contending that the defendant driver's negligence was the sole proximate cause of the accident. The Supreme Court granted the motion, and the defendants appeal.
"To prevail on a motion for summary judgment on the issue of liability in an action alleging negligence, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but that the plaintiff was free from comparative fault, since there can be more than one proximate cause of an accident" ( Ramos v. Bartis, 112 A.D.3d 804, 977 N.Y.S.2d 315 [citations omitted]; see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Hollis v. Marinelli, 149 A.D.3d 922, 52 N.Y.S.3d 444 ; Lezcano–Correa v. Sunny's Limousine Serv., Inc., 145 A.D.3d 766, 43 N.Y.S.3d 129 ). Where the movant has established his or her entitlement to judgment as a matter of law, the opposing party may defeat the motion for summary judgment by submitting sufficient evidence to raise a triable issue of fact as to the movant's comparative fault (see Zhu v. Natale, 131 A.D.3d 607, 608, 15 N.Y.S.3d 204 ; Brown v. Mackiewicz, 120 A.D.3d 1172, 992 N.Y.S.2d 314 ; Ramos v. Bartis, 112 A.D.3d at 804, 977 N.Y.S.2d 315 ).
The plaintiff established his prima facie entitlement to summary judgment on the issue of liability by submitting evidence demonstrating that he looked both ways before entering a marked crosswalk with the traffic light in his favor, that he was not comparatively at fault in the happening of the accident, and that the defendant driver's failure to yield the right-of-way to him was the sole proximate cause of the accident (see Dunajski v. Kirillov, 148 A.D.3d 991, 992, 49 N.Y.S.3d 751 ; Lezcano–Correa v. Sunny's Limousine Serv., Inc., 145 A.D.3d at 767, 43 N.Y.S.3d 129; Gomez v. Novak, 140 A.D.3d 831, 831–832, 32 N.Y.S.3d 623 ).
In opposition, however, the defendants submitted the affidavit of the defendant driver, which raised a triable issue of fact. Contrary to the plaintiff's contention, in determining the motion, the Supreme Court should have considered the defendant driver's affidavit "notwithstanding that it was subscribed and sworn to out of state and not accompanied by a certificate of conformity as required by CPLR 2309(c), as such a defect is not fatal, and no substantial right of the [plaintiff] was prejudiced by disregarding the defect" ( Bank of N.Y. Mellon v. Vytaligam, 144 A.D.3d 1070, 1071, 42 N.Y.S.3d 274 ; see CPLR 2001 ; Deutsche Bank Natl. Trust Co. v. Naughton, 137 A.D.3d 1199, 1200, 28 N.Y.S.3d 444 ; Matos v. Salem Truck Leasing, 105 A.D.3d 916, 917, 963 N.Y.S.2d 366 ). In his affidavit, the defendant driver provided an account of the incident which contradicted the plaintiff's account of the incident. The defendant driver averred that the traffic light was in his favor as his vehicle approached and crossed the subject crosswalk. He also averred that when he first saw the plaintiff, the plaintiff was running across the street, approximately 50 to 60 feet away from the crosswalk, and that he could not stop his vehicle in time to avoid the contact. Thus, the defendants raised a triable issue of fact as to whether the plaintiff was comparatively at fault in the happening of the accident (see Vehicle and Traffic Law § 1152 [a]; Goulet v. Anastasio, 148 A.D.3d 783, 48 N.Y.S.3d 731 ; Galo v. Cunningham, 106 A.D.3d 865, 866, 965 N.Y.S.2d 571 ).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.