| Stevens v Zukowski |
| 2008 NY Slip Op 07461 [55 AD3d 1400] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Richard M. Stevens, III, Appellant, v Charles Zukowski,Respondent. |
—[*1]
Appeal from an order of the Supreme Court, Onondaga County (Brian F. DeJoseph, J.), enteredApril 26, 2007. The order, insofar as appealed from, denied that part of the motion of plaintiff todismiss the second affirmative defense.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on the lawwithout costs, the motion is granted in its entirety and the second affirmative defense is dismissed.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when,according to plaintiff, a vehicle driven by defendant suddenly pulled out in front of the motorcycle drivenby plaintiff, causing plaintiff to strike defendant's vehicle because he had no time to take evasive action.Plaintiff thereafter moved for partial summary judgment on the issue of liability, and he sought dismissalof "any affirmative defenses of contributory negligence." Supreme Court granted that part of plaintiff'smotion with respect to partial summary judgment on liability, i.e., negligence and proximate cause, butdenied that part seeking dismissal of the affirmative defenses "relating to Plaintiff's alleged culpableconduct and comparative negligence." We agree with plaintiff that the court should have granted hismotion in its entirety. Plaintiff established as a matter of law that defendant's negligence was the soleproximate cause of the accident (see Miller vRichardson, 48 AD3d 1298, 1300 [2008]; Pomietlasz v Smith, 31 AD3d 1173 [2006]; Kelsey v Degan,266 AD2d 843 [1999]), and defendant failed to raise a triable issue of fact (seePomietlasz, 31 AD3d 1173 [2006]; see generally Zuckerman v City of New York, 49NY2d 557, 562 [1980]). Present—Scudder, P.J., Martoche, Fahey, Peradotto and Gorski, JJ.