Opinion
12-14-2016
Boris FIRAYNER, appellant, v. Jose Juan CASTRO, respondent.
William Pager, Brooklyn, N.Y., for appellant. Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
William Pager, Brooklyn, N.Y., for appellant.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated October 28, 2015, which denied his motion for summary judgment on the issue of liability without prejudice to renewal upon the completion of discovery.ORDERED that the order is affirmed, with costs.
On July 18, 2014, a vehicle operated by the plaintiff and a vehicle operated by the defendant collided on Stillwell Avenue, near its intersection with Shore Parkway, in Brooklyn. Approximately two months later, the plaintiff commenced this action against the defendant. In September 2015, prior to the completion of discovery, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court denied the motion without prejudice to renewal upon the completion of discovery. We affirm.
There can be more than one proximate cause of an accident (see Sirlin v. Schreib, 117 A.D.3d 819, 985 N.Y.S.2d 688 ; Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 620, 959 N.Y.S.2d 270 ; Simmons v. Canady, 95 A.D.3d 1201, 1202, 945 N.Y.S.2d 138 ; Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282 ). Consequently, "[t]o 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" (Ramos v. Bartis, 112 A.D.3d 804, 804, 977 N.Y.S.2d 315 ; see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Moluh v. Vord, 143 A.D.3d 680, 680, 39 N.Y.S.3d 187 ; Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18, 22, 22 N.Y.S.3d 75 ).
The plaintiff, in support of his motion, relied upon, inter alia, his affidavit stating that he was not negligent in the happening of the subject accident and that the defendant violated Vehicle and Traffic Law § 1128(a) (see Espinoza v. Coco–Cola Bottling Co. of N.Y., Inc., 121 A.D.3d 640, 993 N.Y.S.2d 721 ; Calandra v. Dishotsky, 244 A.D.2d 376, 664 N.Y.S.2d 95 ). In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law on the issue of liability, the defendant raised triable issues of fact as to whether he was confronted with an emergency situation not of his own making and whether his reaction was reasonable under the circumstances (see Mitchell v. City of New York, 89 A.D.3d 1068, 1069, 933 N.Y.S.2d 405 ). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability without prejudice to renewal upon the completion of discovery.