| Clark v Blacktop Maintenance Corp. |
| 2009 NY Slip Op 00327 [58 AD3d 663] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Michael J. Clark, Respondent, v Blacktop MaintenanceCorp. et al., Appellants. |
—[*1] Finkelstein & Partners, Newburgh, N.Y. (James W. Shuttleworth III of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Dutchess County (Brands, J.), dated December 12, 2007, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendants failed to make a prima facie showing of entitlement to judgment as a matterof law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Thedeposition testimony of various witnesses submitted by the defendants in support of the motionshowed that the parties did not agree as to how the accident occurred. At the time of the accident,the defendant Douglas Cameron was operating a tractor-trailer owned by the defendant BlacktopMaintenance Corp. Cameron alleged that the plaintiff's motorcycle crossed the double yellowline and struck the tractor-trailer. An acquaintance of the plaintiff, who was riding hismotorcycle behind the plaintiff's motorcycle and allegedly witnessed the accident, stated that thetractor-trailer crossed the double yellow line and struck the plaintiff's motorcycle. Under thecircumstances, the defendants' expert evidence was insufficient to establish, prima facie, that theplaintiff's negligent operation of his vehicle was the sole proximate cause of the accident (cf. Dorazio v Delbene, 37 AD3d645 [2007]). Rivera, J.P., Santucci, Carni and Dickerson, JJ., concur.