Opinion
2005-1895 S C.
Decided July 3, 2006.
Appeal from an order of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered November 2, 2005. The order denied plaintiff's motion for summary judgment.
Order modified by providing that plaintiff's motion for summary judgment is granted to the extent of finding for all purposes in this action ( see CPLR 3212 [g]) that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson; as so modified, affirmed without costs.
PRESENT: RUDOLPH, P.J., ANGIOLILLO and LIPPMAN, JJ.
In this action by a subrogee to recover excess no-fault benefits paid on behalf of its insured, plaintiff, in moving for summary judgment, submitted an affidavit by its insured wherein she stated that her vehicle was legally stopped when defendant Ronnie Lee Nelson, the driver of the corporate defendant's truck, backed the truck into her vehicle. Plaintiff thus met its initial burden on the motion with respect to the issue of defendant Nelson's negligence in the operation of the truck, thereby shifting the burden to defendants as to said issue ( see Vehicle and Traffic Law § 1121 [a]; see also Garcia v. Verizon N.Y., Inc., 10 AD3d 339, 340; Pressner v. Serrano, 260 AD2d 458, 459). Defendants' opposition papers, which did not include an affidavit from defendant Nelson, failed to raise any triable issue of fact with respect to the issue of Nelson's negligence. Accordingly, we deem it an established fact for all purposes in this action that the motor vehicle accident was solely caused by the culpable conduct of defendant Ronnie Lee Nelson (CPLR 3212 [g]). However, plaintiff is not entitled to summary judgment generally on the issue of liability with respect to its claim to recover excess no-fault benefits because there are triable issues of fact with respect to a release executed by plaintiff's insured in favor of defendants ( see generally Weinberg v. Transamerica Ins. Co., 62 NY2d 379, 382-383; Travelers Prop. Cas. v. Giorgio, 21 AD3d 1086).
Rudolph, P.J., Angiolillo and Lippman, JJ., concur.