| Medina v Rodriguez |
| 2012 NY Slip Op 01438 [92 AD3d 850] |
| February 21, 2012 |
| Appellate Division, Second Department |
| Luis Medina, Respondent, v Leonidas Rodriguez et al.,Appellants, and Jane Jongjin Bae et al., Defendants. |
—[*1] Souren A. Israelyan, New York, N.Y, for respondent.
In an action to recover damages for personal injuries, the defendants Leonidas Rodriguez andL & N Car Service appeal, as limited by their brief, from so much of an order of the SupremeCourt, Queens County (Weiss, J.), dated November 12, 2010, as granted that branch of theplaintiff's motion which was, in effect, for summary judgment against them on the issue ofwhether he was at fault in the happening of the accident.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff was a rear seat passenger in a livery taxicab operated by the defendant LeonidasRodriguez and owned by the defendant L & N Car Service (hereinafter together the appellants)when the taxicab was involved in a collision with a vehicle operated by the defendant JaneJongjin Bae and owned by the defendant Sang Moon Bae. The plaintiff commenced this action torecover damages for personal injuries, and moved, in effect, for summary judgment on the issueof whether he was at fault in the happening of the accident.
The Supreme Court properly granted that branch of the plaintiff's motion which was, ineffect, for summary judgment against the appellants on the issue of whether the plaintiff was atfault in the happening of the accident. The right of an innocent passenger to summary judgmenton the issue of whether he or she was at fault in the happening of an accident is not restricted bypotential issues of comparative negligence as between two defendant drivers (see CPLR3212 [g]; Garcia v Tri-County Ambulette Serv., 282 AD2d 206, 207 [2001]; Johnsonv Phillips, 261 AD2d 269, 272 [1999]; Silberman v Surrey Cadillac Limousine Serv.,109 AD2d 833, 833-834 [1985]; seealso Conigliaro v Premier Poultry, Inc., 67 AD3d 954, 955 [2009]). The plaintiff made aprima facie showing that he did not engage in any culpable conduct that contributed to thehappening of the accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Inopposition, the appellants failed to raise a triable issue of fact. Contrary to the appellants'contention, summary judgment was not premature. The appellants failed to demonstrate thatdiscovery may lead to relevant evidence or that facts essential to justify opposition to the motionwere exclusively within the knowledge and control of the plaintiff (see CPLR 3212 [f];Martinez v Kreychmar, 84 AD3d1037, 1038 [2011]; Theresa StrianoRevocable Trust v [*2]Hoffman, 71 AD3d 993, 994[2010]; Hill v Ackall, 71 AD3d829, 830 [2010]). Dillon, J.P., Florio, Chambers and Lott, JJ., concur.