Opinion
14407 Index No. 159324/17 Case No. 2020-03862
10-19-2021
Antoinette MONTAGUE, Plaintiff–Appellant, v. SHUN LEE PALACE RESTAURANT, INC., et al., Defendants–Respondents.
Michael H. Zhu, PC, New York (Michael H. Zhu of counsel), for appellant. Gallo Vitucci Klar, LLP, New York (Jae W. Joo of counsel), for respondents.
Michael H. Zhu, PC, New York (Michael H. Zhu of counsel), for appellant.
Gallo Vitucci Klar, LLP, New York (Jae W. Joo of counsel), for respondents.
Gische, J.P., Webber, Mazzarelli, Moulton, Pitt, JJ.
Order, Supreme Court, New York County (Frank P. Nervo, J.), entered September 16, 2020, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff made a prima facie showing of defendants’ negligence by submitting their employee's testimony that while making food deliveries for defendants, he collided with pedestrian plaintiff while operating his bicycle in the wrong direction on a one-way street (see Vehicle and Traffic Law § 1127 ; Guerrero v. Milla, 135 A.D.3d 635, 24 N.Y.S.3d 63 [1st Dept. 2016] ). In opposition, defendants failed to raise an issue of fact by offering a nonnegligent explanation for the accident (see Guerrero, 135 A.D.3d at 636, 24 N.Y.S.3d 63 ). Plaintiff was not required to demonstrate either her own freedom from comparative negligence or that defendants’ negligence was the sole proximate cause of the accident ( Simmons v. Bergh, 192 A.D.3d 547, 548, 140 N.Y.S.3d 703 [1st Dept. 2021] ). Plaintiff's detailed description of the accident provided ample evidence that defendant's negligence was a proximate cause of the accident. Any discrepancies between plaintiff's deposition testimony and her affidavit bear only on the degree, if any, of her comparative fault, and may be considered when assessing damages (see CPLR 1411 ; Simmons, 192 A.D.3d at 548, 140 N.Y.S.3d 703 ).
That defendants’ employee was acting in the scope of his employment when the accident happened is established by his testimony that he unintentionally ran into plaintiff as he was returning on his bicycle to defendants’ restaurant to hand in receipts from his food deliveries to customers (see Cianfano v. Angelina's Ristorante & Brick Oven Pizza, 161 A.D.3d 474, 73 N.Y.S.3d 421 [1st Dept. 2018] ).