| Espinoza v Coco-Cola Bottling Co. of N.Y., Inc. |
| 2014 NY Slip Op 06557 |
| Decided on October 1, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 1, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
JOHN M. LEVENTHAL
JOSEPH J. MALTESE
BETSY BARROS, JJ.
2014-05313
(Index No. 2959/13)
v
Coco-Cola Bottling Company of New York, Inc., et al., respondents.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen of counsel), for appellant.
Goldberg Segalla LLP, Garden City, N.Y. (Brendan T. Fitzpatrick, Emilio F. Grillo, and Karen Saab-Dominguez of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated February 13, 2014, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, 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 (see Thoma v Ronai, 82 NY2d 736, 737; Gorenkoff v Nagar, 120 AD3d 470; Pollack v Margolin, 84 AD3d 1341, 1342), since there can be more than one proximate cause of an accident (see Adobea v Junel, 114 AD3d 818; Allen v Echols, 88 AD3d 926).
Here, the plaintiff established his entitlement to judgment as a matter of law by submitting his affidavit, which demonstrated, prima facie, that the defendant driver was negligent in suddenly pulling his vehicle out of a parking spot, without warning, into a lane of moving traffic, striking the plaintiff's vehicle, and that the defendant driver's negligence was the sole proximate cause of the accident (see Calandra v Dishotsky, 244 AD2d 376; see also Smalls v Adams, 118 AD3d 693; Jacino v Sugerman, 10 AD3d 593). In opposition, the defendants submitted the affidavit of the defendant driver, which provided a conflicting version of the facts surrounding the accident. Under these circumstances, a triable issue of fact exists as to whether the plaintiff was comparatively at fault (see generally Incle v Byrne-Lowell, 115 AD3d 709; Singh v Thomas, 113 AD3d 748; Ortiz v Hub Truck Rental Corp., 82 AD3d 725; Anyanwu v Johnson, 276 AD2d 572). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability.
BALKIN, J.P., LEVENTHAL, MALTESE and BARROS, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court