Opinion
2021-03476 Index 701851/18
06-02-2021
Gustavo Ramirez, respondent, v. Pema Wangdu, appellant.
Nancy L. Isserlis (The Zweig Law Firm, P.C., Brooklyn, NY [Jonah S. Zweig], of counsel), for appellant. The Orlow Firm, Flushing, NY (T.P. Murphy of counsel), for respondent.
Nancy L. Isserlis (The Zweig Law Firm, P.C., Brooklyn, NY [Jonah S. Zweig], of counsel), for appellant.
The Orlow Firm, Flushing, NY (T.P. Murphy of counsel), for respondent.
LEONARD B. AUSTIN, J.P. COLLEEN D. DUFFY ANGELA G. IANNACCI PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), dated September 17, 2019. The order granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence, is denied.
In February 2018, the plaintiff commenced this action against the defendant to recover damages for personal injuries that he alleged that he sustained in October 2017 when the plaintiff's vehicle and the defendant's vehicle collided at an intersection in Queens. The plaintiff moved for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence. In an order dated September 17, 2019, the Supreme Court granted the plaintiff's motion. The defendant appeals. We reverse.
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 (see e.g. Rodriguez v City of New York, 31 N.Y.3d 312, 319-320; Maher v Vargas-Bonilla, 191 A.D.3d 867, 868). In addition, the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence (see Poon v Nisanov, 162 A.D.3d 804, 808).
Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law. In support of his motion, the plaintiff submitted his deposition testimony and the deposition testimony of the defendant. Inasmuch as the deposition testimony of the defendant and that of the plaintiff raised triable issues of fact as to who had the right of way, the plaintiff's submissions failed to eliminate all triable issues of fact as to whether the defendant was negligent (see e.g. Maher v Vargas-Bonilla, 191 A.D.3d at 868; Poon v Nisanov, 162 A.D.3d at 807-808) and whether the plaintiff was free from comparative negligence (see generally Flores v Rubenstein, 175 A.D.3d 1490, 1491; Aponte v Vani, 155 A.D.3d 929, 930-931).
Since the plaintiff failed to meet his initial burden as the movant, it is not necessary to review the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence.
AUSTIN, J.P., DUFFY, IANNACCI and WOOTEN, JJ., concur.