| Roman v A1 Limousine, Inc. |
| 2010 NY Slip Op 06367 [76 AD3d 552] |
| August 10, 2010 |
| Appellate Division, Second Department |
| Hector Roman, Appellant, v A1 Limousine, Inc., et al.,Respondents. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Tara M. Higgins and Michael G.Kruzynski of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Farneti, J.), entered July 1, 2009, which denied his motionfor summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
Although we affirm the order of the Supreme Court, we do so on different grounds fromthose relied upon by that court. Contrary to the Supreme Court's determination, the plaintifffailed to "make a prima facie showing of entitlement to judgment as a matter of law, tenderingsufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; see Thoma v Ronai, 82 NY2d 736, 737[1993]). The proof submitted by the plaintiff in support of his motion failed to establish, as amatter of law, that he was free from comparative negligence (see Yuen Lum v Wallace, 70 AD3d 1013, 1014 [2010]; Cali v Mustafa, 68 AD3d 700,701 [2009]; Gideon v FlatlandsBeverage Distribs., Inc., 59 AD3d 596 [2009]; Cator v Filipe, 47 AD3d 664, 664-665 [2008]; Scibelli v Hopchick, 27 AD3d720 [2006]; Wallace v Dubin,20 AD3d 412 [2005]; Valore vMcIntosh, 8 AD3d 662 [2004]; Eastmond v Wen Po Wong, 300 AD2d 344[2002]). The failure to make such a showing requires the denial of the motion, regardless of thesufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
To the extent that the Appellate Division, First Department holds differently (see Tselebis v Ryder Truck Rental,Inc., 72 AD3d 198 [2010]), we disagree and decline to follow that holding. InThoma v Ronai (82 NY2d 736 [1993]), a case directly on point, the Court of Appeals, inaffirming an order issued by the Appellate Division, First Department, expressly concluded thatthe plaintiff's motion for summary judgment on the issue of liability was properly denied wherethe plaintiff's submissions failed to eliminate a triable issue of fact regarding her comparativenegligence.
Moreover, contrary to the Appellate Division, First Department's statements in [*2]Tselebis, CPLR 1411 was not relevant to the issues presentedherein. CPLR 1411 codifies the rule that any culpable conduct attributable to the plaintiff,including his or her negligence or assumption of risk, does not bar the plaintiff's recovery ofdamages, but shall diminish that recovery in proportion to the culpable conduct of the defendant.CPLR 1411 pertains to the damages ultimately recoverable by a plaintiff. It has no bearing,procedurally or substantively, upon a plaintiff's burden of proof as the proponent of a motion forsummary judgment on the issue of liability. Rivera, J.P., Covello, Balkin and Hall, JJ., concur.