| Lee v Hossain |
| 2013 NY Slip Op 07712 [111 AD3d 799] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Sonya Lee, Respondent, v Mohammad Z. Hossainet al., Appellants, and Alvin C. Licona et al., Respondents. |
—[*1] Gersowitz Libo & Korek P.C., New York, N.Y. (Michael Zisser and Brian Isaac ofcounsel), for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendants Mohammad Z.Hossain and Mohammad H. Rahman appeal, as limited by their brief, from so much of anorder of the Supreme Court, Kings County (Lewis, J.), dated February 3, 2012, as deniedthat branch of their motion which was for summary judgment dismissing the complaintand all cross claims insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs payable to theplaintiff-respondent.
In support of that branch of their motion which was for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them on theground that they were not liable in the happening of the accident, the appellantssubmitted, inter alia, various deposition transcripts of the parties. These transcriptscontained conflicting testimony as to the facts surrounding the accident, including, butnot limited to, the issue concerning which vehicle lawfully entered the intersectionfirst—the plaintiff's vehicle, owned and operated by the appellants Mohammad Z.Hossain and Mohammad H. Rahman, respectively, or the vehicle owned and operated bythe defendants Alvin C. Licona and Jorge A. Flores, respectively. Thus, the evidence didnot establish, prima facie, that the vehicle operated by the defendant Jorge A. Floresviolated Vehicle and Traffic Law § 1141, or that, if it did, such violation was thesole proximate cause of the accident (see Gause v Martinez, 91 AD3d 595, 597 [2012]; Todd v Godek, 71 AD3d872, 873 [2010]; Lopez vReyes-Flores, 52 AD3d 785, 786 [2008]). Since the appellants failed toestablish their prima facie entitlement to judgment as a matter of law, it is unnecessary todetermine whether the papers submitted in opposition to that branch of the motion weresufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
Accordingly, the Supreme Court properly denied that branch of the appellants'motion which was for summary judgment dismissing the complaint and all cross claimsinsofar as asserted [*2]against them. Rivera, J.P.,Dickerson, Roman and Miller, JJ., concur.