| Yuen Lum v Wallace |
| 2010 NY Slip Op 01625 [70 AD3d 1013] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Yuen Lum, Respondent, v Norma Iris Wallace,Appellant. |
—[*1] Morelli Ratner P.C., New York, N.Y. (David S. Ratner of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Ruchelsman, J.), dated June 22, 2009, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is denied.
Under the circumstances of this case, the plaintiff failed to establish, as a matter of law, thathe was free from comparative negligence, as he failed to state in his initial affidavit that heentered the crosswalk where the accident occurred with reasonable care (see Thoma vRonai, 82 NY2d 736, 737 [1993]; Lopez v Garcia, 67 AD3d 558 [2009]; Sale vLee, 49 AD3d 854 [2008]; Cator v Filipe, 47 AD3d 664 [2008]; Schmidt vFlickinger Co., 88 AD2d 1068, 1068-1069 [1982]). The Supreme Court erred in consideringthe plaintiff's reply affidavit in which he stated that prior to crossing he looked left and right, andsaw no vehicle coming (see David v Bryon, 56 AD3d 413, 414-415 [2008]; Barrera vMTA Long Is. Bus, 52 AD3d 446 [2008]). The plaintiff's failure to make a prima facieshowing required the denial of the motion, regardless of the sufficiency of the opposition papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
In light of our determination, we need not reach the defendant's remaining contentions.Rivera, J.P., Dickerson, Chambers and Hall, JJ., concur.