| Hollis v Marinelli |
| 2017 NY Slip Op 02974 |
| Decided on April 19, 2017 |
| 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 April 19, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
VALERIE BRATHWAITE NELSON, JJ.
2015-09584
(Index No. 52976/14)
v
William L. Marinelli, et al., respondents.
Bartels & Feureisen, LLP, White Plains, NY (Michael Fahey of counsel), for appellant.
Law Office of Marc D. Orloff, P.C., Goshen, NY (Dennis J. Mahoney III of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (DiBella, J.), dated September 8, 2015, which denied her 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 granted.
"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 AD3d 804, 804 [citations omitted]; see Thoma v Roni, 82 NY2d 736, 737; Lezcano-Correa v Sunny's Limousine Serv., Inc., 145 AD3d 766; Gomez v Novak, 140 AD3d 831, 831-832). Where the plaintiff has established her or his prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault (see Zhu v Natale, 131 AD3d 607, 608; Brown v Mackiewicz, 120 AD3d 1172; Ramos v Bartis, 112 AD3d at 804).
Here, the evidence submitted by the plaintiff in support of her motion for summary judgment on the issue of liability, which included, among other things, a digital video disc containing footage of the accident, demonstrated, prima facie, that the defendant driver was negligent in failing to yield the right-of-way to the plaintiff's decedent, who was crossing the street within a crosswalk with the traffic light in her favor when she was struck by the defendants' vehicle as it attempted to make a left turn, and that the plaintiff's decedent was free from comparative fault (see Lezcano-Correa v Sunny's Limousine Serv., Inc., 145 AD3d 766; Gomez v Novak, 140 AD3d at 831-832; Lesaldo v Dabas, 140 AD3d 708, 709; cf. Castiglione v Kruse, 27 NY3d 1018). In opposition, the defendants failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability.
RIVERA, J.P., HALL, ROMAN and BRATHWAITE NELSON, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court