Opinion
2014-03309, Index No. 18081/12.
01-28-2015
Angel L. MATOS, appellant, v. KUI F. TAI, et al., respondents.
Robinson & Yablon, P.C., New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant. Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Huzeler of counsel), for respondents.
Robinson & Yablon, P.C., New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant.
Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Huzeler of counsel), for respondents.
Opinion
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated February 11, 2014, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
The plaintiff alleged that on December 6, 2011, as he was lawfully walking across Onderdonk Avenue at its intersection with Flushing Avenue in Ridgewood, he was struck by the defendants' vehicle.
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 also that the plaintiff was free from comparative fault (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Brown v. Mackiewicz, 120 A.D.3d 1172, 1173, 992 N.Y.S.2d 314 ; Ramos v. Bartis, 112 A.D.3d 804, 804, 977 N.Y.S.2d 315 ; Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282 ). The issue of comparative negligence generally is a question for the jury to decide (see Brandt v. Zahner, 110 A.D.3d 752, 752, 974 N.Y.S.2d 482 ; Jahangir v. Logan Bus Co., Inc., 89 A.D.3d 1064, 1064, 933 N.Y.S.2d 402 ).
Here, contrary to the plaintiff's contentions, he failed to establish, prima facie, that he was free from comparative fault in the happening of the accident, as there was conflicting evidence concerning the events leading up to the accident (see Thoma v. Ronai, 82 N.Y.2d at 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Cator v. Filipe, 47 A.D.3d 664, 664, 850 N.Y.S.2d 510 ; Albert v. Klein, 15 A.D.3d 509, 510, 789 N.Y.S.2d 684 ). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).
MASTRO, J.P., ROMAN, SGROI and BARROS, JJ., concur.