| Strychalski v Dailey |
| 2009 NY Slip Op 06134 [65 AD3d 546] |
| August 4, 2009 |
| Appellate Division, Second Department |
| Luke Strychalski, Plaintiff, and Nestor Estrada,Appellant, v Vincent M. Dailey et al., Respondents. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Sara Luca Salvi of counsel),for respondents.
In an action to recover damages for personal injuries, the plaintiff Nestor Estrada appealsfrom an order of the Supreme Court, Westchester County (Liebowitz, J.), entered November 18,2008, which denied his motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff Nestor Estrada (hereinafter the plaintiff) established that collateral estoppeleffect should be given to the plea of guilty entered by the defendant Vincent M. Dailey(hereinafter the defendant) to the offense of vehicular assault in the second degree, therebyestablishing the defendant's negligence as a proximate cause of the accident (see Blaich v Van Herwynen, 37 AD3d387, 388 [2007]; Martin v GeicoDirect Ins., 31 AD3d 505 [2006]; Comprehensive Med. Care of N.Y., P.C. v Hausknecht, 55 AD3d777 [2008]). However, the plaintiff failed to establish as a matter of law that he was freefrom culpable conduct with regard to the causation of his injuries (see CPLR 1411;Arbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d 161 [1985]; Beck v Northside Med., 46 AD3d499 [2007]; Regan v Ancoma, Inc.,11 AD3d 1016 [2004]; Halvorsen v Ford Motor Co., 132 AD2d 57 [1987]). Anindividual who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated,takes a risk that injury might occur. That risk should be considered as part of the analysis of thecomparative negligence of the passenger and the operator of the vehicle (see generallyArbegast v Board of Educ. of S. New Berlin Cent. School, 65 NY2d at 166-170; Beck vNorthside [*2]Med., 46 AD3d at 500; Regan v Ancoma,Inc., 11 AD3d at 1016; Halvorsen v Ford Motor Co., 132 AD2d at 62). Since triableissues of fact exist as to the comparative negligence of the plaintiff and the defendant, theplaintiff failed to meet his prima facie burden of demonstrating entitlement to judgment as amatter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Sale v Lee, 49 AD3d 854[2008]; Valore v McIntosh, 8 AD3d662 [2004]), and the Supreme Court properly denied his motion for summary judgment onthe issue of liability. Miller, J.P., Angiolillo, Eng and Austin, JJ., concur.