| Cali v Mustafa |
| 2009 NY Slip Op 08985 [68 AD3d 700] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Giovanni Cali et al., Respondents, v Izeddin Mustafa et al.,Appellants. |
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In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Queens County (Golia, J.), dated April 8, 2009, which granted theplaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion forsummary judgment on the issue of liability is denied.
Contrary to the Supreme Court's determination, the plaintiff Giovanni Cali (hereinafterGiovanni) failed to satisfy his prima facie burden of establishing his entitlement to judgment as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Viewing theevidence submitted in support of the plaintiffs' motion in the light most favorable to thenonmoving party (see FundamentalPortfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 [2006];Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610[1990]), there is a triable issue of fact as to whether comparative negligence on Giovanni's partcontributed to the subject motor vehicle accident (see Eastmond v Wen Po Wong, 300AD2d 344 [2002]). Although the defendant's direction of travel was controlled by a stop sign atthe intersection where the accident occurred, Giovanni's affidavit, submitted in support of themotion, did not establish, as a matter of law, that Giovanni was free from comparativenegligence (see Sale v Lee, 49AD3d 854 [2008]; Scibelli vHopchick, 27 AD3d 720 [2006]; Hernandez v Bestway Beer & Soda Distrib.,301 AD2d 381 [2003]; Eastmond v Wen Po Wong, 300 AD2d 344 [2002];Millus v Milford, 289 AD2d 543 [2001]; King v Washburn, 273 AD2d 725[2000]).
Since the plaintiffs failed to meet their burden as the movants, we need not review thesufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851 [1985]; Valore vMcIntosh, 8 AD3d 662 [2004]).
Accordingly, the plaintiffs' motion for summary judgment on the issue of liability shouldhave been denied. Mastro, J.P., Belen, Hall and Austin, JJ., concur.