Stern v Amboy Bus Co., Inc.

2013 NY Slip Op 00193 [102 AD3d 763]

January 16, 2013

Appellate Division, Second Department

As corrected through Wednesday, February 27, 2013

Richard L. Stern et al., Appellants, v Amboy BusCo., Inc., et al., Respondents.

—[*1]Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), forappellants.

Silverman Sclar Shin & Byrne PLLC, New York, N.Y. (Vincent Chirico of counsel),for respondents.

In an action to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Suffolk County (Pitts, J.), dated September 16, 2011, whichdenied their motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiffs' motion for summary judgment onthe issue of liability. The evidence submitted in support of the motion did not establishthat the plaintiff driver was free from comparative fault, and that the defendant driver'salleged violation of Vehicle and Traffic Law § 1142 (a) was the sole proximatecause of the accident (see Reyesv Marchese, 96 AD3d 926, 927 [2012]; Simmons v Canady, 95 AD3d 1201, 1203 [2012]; Matamoro v City of NewYork, 94 AD3d 722, 722-723 [2012]). In light of the plaintiffs' failure to meettheir prima facie burden, we need not consider the sufficiency of the defendants'opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).Mastro, J.P., Dickerson, Lott and Austin, JJ., concur.