| Karash v Adetunji |
| 2008 NY Slip Op 09358 [56 AD3d 726] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Joseph Karash et al., Respondents, v Bukky M. Adetunji,Defendant, and E-J Electric Installation Co. et al., Appellants. |
—[*1] Harris Beach PLLC, New York, N.Y. (David H. Kochman of counsel), for appellant UnitedRentals, Inc. Sacks and Sacks, LLP, New York, N.Y. (Scott N. Singer of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant E-J ElectricInstallation Co. appeals and the defendant United Rentals, Inc., separately appeals, as limited bytheir respective briefs, from so much of an order of the Supreme Court, Kings County (Schmidt,J.), dated July 10, 2007, as granted those branches of the plaintiffs' motion which were forsummary judgment on the issue of liability insofar as asserted against each of them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the plaintiffs' motion which were for summary judgment on the issue ofliability insofar as asserted against the defendants E-J Electric Installation Co. and UnitedRentals, Inc., are denied.
The plaintiff Joseph Karash (hereinafter Karash) testified at his deposition that, at the time ofthe subject accident, he was operating a box truck. He asserted that he brought his box truck to acomplete stop at a red traffic light, when a truck operated by the defendant Bukky M. Adetunjipassed him on the left and attempted to make a left turn, causing the right side of Adetunji's truckto collide with the front left wheel of the box truck.
In the instant case, the evidence submitted by the plaintiffs established, prima facie, that[*2]Karash was not negligent, and that the appellants' negligencecaused the accident. In opposition, however, the appellants raised a triable issue of fact as towhether Karash was trying to "overtake and pass" their vehicle on the right side and whether hecontributed to the accident (see Vehicle and Traffic Law § 1123 [b]; White vDiaz, 49 AD3d 134 [2008]). Where comparative negligence may have contributed to anaccident, summary judgment will be precluded (see Hopkins v Haber, 39 AD3d 471[2007]; Abramov v Campbell, 303 AD2d 697 [2003]).
Under these circumstances, the Supreme Court erred in granting those branches of theplaintiffs' motion which were for summary judgment on the issue of liability insofar as assertedagainst each of the appellants. Spolzino, J.P., Angiolillo, Dickerson and Belen, JJ., concur.