| Burnett v Reisenauer |
| 2013 NY Slip Op 03960 [107 AD3d 656] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Claude Burnett, Respondent, v WilliamReisenauer, Appellant. |
—[*1] Michael S. Langella, P.C., Hauppauge, N.Y. (Anne Marie Caradonna of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Suffolk County (Spinner, J.), dated November 28, 2011,which granted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is denied.
The plaintiff was injured when he was struck by the defendant's vehicle as it exited aparking lot. At the time of the occurrence the plaintiff was walking on a sidewalkadjacent to the parking lot. In order to exit the parking lot, vehicles had to traverse aramped portion of the adjacent sidewalk. The plaintiff moved for summary judgment onthe basis that the defendant failed to yield the right of way. The Supreme Court grantedthe motion, finding, inter alia, that the plaintiff established his prima facie entitlement tojudgment as a matter of law.
"There can be more than one proximate cause [of an accident] and, thus, theproponent of a summary judgment motion has the burden of establishing freedom fromcomparative negligence as a matter of law" (Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; see Simmons v Canady, 95AD3d 1201 [2012]; Cohn vKhan, 89 AD3d 1052 [2011]; Roman v A1 Limousine, Inc., 76 AD3d 552 [2010]). Here,in support of his motion for summary judgment on the issue of liability, the plaintiffsubmitted, inter alia, the deposition testimony of the parties, which presented conflictingfactual versions as to the happening of the accident. In particular, the plaintiff gaveequivocal testimony regarding where the defendant's vehicle was located when theplaintiff first observed it. Under these circumstances, the plaintiff failed to meet hisprima facie burden of eliminating a triable issue of fact as to his comparative fault(see Simmons v Canady, 95 AD3d at 1203). Accordingly, the plaintiff's motionfor summary judgment should have been denied without consideration of the sufficiencyof the defendant's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d320 [1986]; Cali v Mustafa,68 AD3d 700 [2009]). Balkin, J.P., Leventhal, Sgroi and Miller, JJ., concur.[Prior Case History: 2011 NY Slip Op 33201(U).]