| DeBrine v VanHarken |
| 2011 NY Slip Op 02583 [83 AD3d 1437] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Karen DeBrine, Respondent-Appellant, v Robert L. VanHarken etal., Appellants-Respondents. |
—[*1] Faraci Lange, LLP, Rochester (Stephen G. Schwarz of counsel), forplaintiff-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Livingston County (Dennis S.Cohen, A.J.), entered June 23, 2010 in a personal injury action. The order denied the motion ofplaintiff for partial summary judgment on the issue of liability and the cross motion of defendantsfor partial summary judgment dismissing plaintiff's claim for lost earnings.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion on the issue of defendants' negligence and as modified the orderis affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained when the vehicle that she was operating collided with a vehicle operated by Philip R.VanHarken (defendant) and owned by defendant Robert L. VanHarken. Supreme Court, interalia, denied plaintiff's motion for partial summary judgment on the issue of liability, i.e.,negligence and serious injury (see generally Ruzycki v Baker, 301 AD2d 48, 51-52[2002]), and we conclude that the court erred in denying that part of plaintiff's motion for partialsummary judgment on the issue of defendants' negligence only. We therefore modify the orderaccordingly. The evidence submitted by plaintiff in support of her motion, including defendant'sdeposition testimony, established that defendant struck her vehicle after defendant entered theroadway from a driveway. Plaintiff thus established that defendant "was negligent in failing tosee that which, under the circumstances, he should have seen, and in [pulling out] in front of[plaintiff's] vehicle when it was hazardous to do so" (Stiles v County of Dutchess, 278AD2d 304, 305 [2000]; see Garza vTaravella, 74 AD3d 1802, 1804 [2010]), and defendants failed to raise a triable issue offact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Plaintiff failed, however, to establish that she was not negligent in operating her vehicleand that defendant's negligence was the sole proximate cause of the accident. We therefore rejecther further contention that she was entitled to partial summary judgment on those issues (see Leahey v Fitzgerald, 1 AD3d924, 926 [2003]; cf. Hillman vEick, 8 AD3d 989, 990 [2004]).
Contrary to defendants' contention, the court properly denied their cross motion for [*2]partial summary judgment seeking dismissal of plaintiff's claim forlost earnings. That claim is based upon the allegation that plaintiff sustained a brachial plexusinjury in the accident. Although defendants met their initial burden of establishing that plaintiffdid not sustain such an injury or, alternatively, that the alleged injury was not sustained in theaccident, plaintiff raised a triable issue of fact (see generally Zuckerman, 49 NY2d at562). Present—Centra, J.P., Fahey, Carni, Green and Gorski, JJ.