| Strauss v Billig |
| 2010 NY Slip Op 07816 [78 AD3d 415] |
| November 4, 2010 |
| Appellate Division, First Department |
| Franklin Strauss et al., Appellants, v Hemda Billig, Respondent,and Third-Party Plaintiff. Castle Village Owners Corp., Third-PartyDefendant-Respondent. |
—[*1] Connors & Connors, P.C., Staten Island (Nicole-Celina Urbont of counsel), for Hemda Billig,respondent. Molod Spitz & DeSantis, P.C., New York (Marcy Sonnenborn of counsel), for Castle VillageOwners Corp., respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered February 25, 2010,which, in this action for personal injuries, denied plaintiffs' motion for summary judgment on the issue ofliability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiffs established their entitlement to judgment as a matter of law in this action where plaintiffFranklin Strauss was injured when, while walking on a sidewalk, he was struck by a vehicle driven bydefendant as it was turning into a driveway on premises owned by third-party defendant. Contrary tothe motion court's findings, triable issues regarding plaintiff's comparative negligence in allegedly failingto keep a proper lookout for traffic in light of his testimony that he was looking straight ahead and that apile of garbage bags on the sidewalk did not impede his ability to look right as he was walking in frontof the driveway, do not warrant the denial of the motion.
Plaintiffs are not required to establish freedom from comparative negligence in order to obtainsummary judgment in their favor on the issue of liability. Plaintiff's comparative negligence, if any, merelyacts to diminish recovery in proportion to the culpable conduct of defendant (see CPLR 1411).It was not plaintiffs' burden to demonstrate that defendant's negligence was the sole proximate cause ofhis injuries (see Tselebis v Ryder TruckRental, Inc., 72 AD3d 198, 200 [2010]), and defendant failed to raise a [*2]triable issue of fact as to whether plaintiff's conduct was the soleproximate cause of his injuries.
Defendant failed to provide a proper evidentiary basis supporting her request for further discoveryon the issue of liability (see e.g. Global Mins.& Metals Corp. v Holme, 35 AD3d 93, 102-103 [2006], lv denied 8 NY3d 804[2007]; CPLR 3212 [f]). Concur—Tom, J.P., McGuire, Acosta, Renwick and Freedman, JJ.