Opinion
2022–04733 Index No. 710599/21
12-20-2023
Sohail Butt KARIM, respondent, v. PROLINE RENTAL, LLC, et al., appellants.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Robert S. Whitbeck, Iryna S. Krauchanka, Andrea M. Alonso, and Amanda Zefi of counsel), for appellants. Subin Associates, LLP (Robert J. Eisen and Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Robert S. Whitbeck, Iryna S. Krauchanka, Andrea M. Alonso, and Amanda Zefi of counsel), for appellants.
Subin Associates, LLP (Robert J. Eisen and Pollack Pollack Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac ], of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, LILLIAN WAN, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), dated May 16, 2022. The order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff allegedly sustained personal injuries when the rear passenger side of his vehicle was struck by a vehicle operated by the defendant Ruben Alarcon Romero (hereinafter the defendant driver) and owned by the defendant Proline Rental, LLC (hereinafter Proline). The plaintiff subsequently commenced this action against the defendants to recover damages for personal injuries. The plaintiff moved, inter alia, for summary judgment on the issue of liability and dismissing the defendants’ affirmative defenses alleging comparative negligence. The Supreme Court granted those branches of the motion. The defendants appeal.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ; see Detoma v. Dobson, 214 A.D.3d 948, 949, 186 N.Y.S.3d 309 ). On a motion for summary judgment on the issue of a defendant's liability, a plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Sanders v. Sangemino, 185 A.D.3d 617, 618, 124 N.Y.S.3d 820 ). However, even though a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence (see Sapienza v. Harrison, 191 A.D.3d 1028, 1029, 142 N.Y.S.3d 584 ; Flores v. Rubenstein, 175 A.D.3d 1490, 1491, 109 N.Y.S.3d 390 ).
Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law on the issue of liability through the submission of his affidavit, which demonstrated that Proline's vehicle, which had been traveling in reverse to enter a driveway, suddenly moved forward and struck the rear passenger side of the plaintiff's vehicle (see generally Danziger v. Elias, 195 A.D.3d 897, 146 N.Y.S.3d 493 ; Jo v. Gore, 195 A.D.3d 700, 702, 145 N.Y.S.3d 383 ; Pena v. Santana, 5 A.D.3d 649, 774 N.Y.S.2d 744 ). In opposition, the defendants failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the defendant driver's affidavit, which contained a jurat stating that the affidavit was "[s]worn to before" a notary public, who signed and stamped the document, should have been considered in determining the motion (see Furtow v. Jenstro Enters., Inc., 75 A.D.3d 494, 903 N.Y.S.2d 754 ; Feinman v. Mennan Oil Co., 248 A.D.2d 503, 504, 669 N.Y.S.2d 892 ). In any event, the defendant driver's affidavit, wherein he asserted that he was operating Proline's vehicle in reverse to enter Proline's truck yard, that he then came to a stop, and that he was moving forward when the impact occurred, failed to raise a triable issue of fact as to whether the plaintiff's alleged negligence in entering the opposite lane of traffic in order to go around Proline's vehicle was the sole proximate cause of the accident. The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law dismissing the defendants’ affirmative defenses alleging comparative negligence on the ground that the defendant driver's negligence was the sole proximate cause of the accident. The plaintiff's affidavit failed to provide sufficient details to demonstrate, prima facie, that he was not comparatively at fault in causing the accident (see generally Kanfer v. Wong, 145 A.D.3d 985, 44 N.Y.S.3d 165 ; Jimenez v. Batista, 123 A.D.3d 668, 669, 997 N.Y.S.2d 711 ; Simmons v. Canady, 95 A.D.3d 1201, 1202–1203, 945 N.Y.S.2d 138 ).
Contrary to the defendants’ contention, the motion was not premature.
Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability, but the court should have denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants’ affirmative defenses alleging comparative negligence (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ).
BRATHWAITE NELSON, J.P., GENOVESI, WAN and TAYLOR, JJ., concur.