| Ramos v Bartis |
| 2013 NY Slip Op 08424 [112 AD3d 804] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Yolanda Abarca Ramos, Respondent, v LesterBartis et al., Appellants. |
—[*1] Theodore A. Naima, P.C., Garden City, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendantsappeal from an order of the Supreme Court, Nassau County (Phelan, J.), entered August28, 2012, which granted the plaintiff's motion for summary judgment on the issue ofliability.
Ordered that the order is affirmed, with costs.
To prevail on a motion for summary judgment on the issue of liability in an actionalleging negligence, a plaintiff has the burden of establishing, prima facie, not only thatthe defendant was negligent, but that the plaintiff was free from comparative fault(see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Pollack v Margolin, 84 AD3d1341, 1342 [2011]), since there can be more than one proximate cause of anaccident (see Pollack v Margolin, 84 AD3d at 1342). Where the movant hasestablished his or her entitlement to judgment as a matter of law, the opposing party maydefeat the motion for summary judgment by submitting sufficient evidence to raise atriable issue of fact as to the moving party's comparative fault (see Lu Yuan Yang v Howsal CabCorp., 106 AD3d 1055 [2013]).
In support of her motion for summary judgment on the issue of liability, the plaintiffestablished her prima facie entitlement to judgment as a matter of law by demonstratingthat she entered the crosswalk at the subject intersection after exercising reasonable careand was walking within the crosswalk with the signal in her favor, and that the defendantdriver, Lester Bartis, was negligent in failing to yield the right of way (see Moreira v M.K. Travel &Transp., Inc., 106 AD3d 965 [2013]; Buchinger v Jazz Leasing Corp., 95 AD3d 1053 [2012]; Arazashvilli v Executive FleetMgt., Corp., 90 AD3d 682 [2011]; Qamar v Kanarek, 82 AD3d 860 [2011]; cf. Thoma vRonai, 82 NY2d at 737; Day v MTA Bus Co., 94 AD3d 940 [2012]). Thedefendants' argument concerning the inadmissibility of the plaintiff's English-languageaffidavit, which was submitted in support of the plaintiff's motion, while correct, doesnot change the outcome of this appeal. The order appealed from does not indicate that theSupreme Court relied on the plaintiff's inadmissible English-language affidavit indeterminating that the plaintiff established her prima facie entitlement to judgment as amatter of law (see Reyes v ArcoWentworth Mgt. Corp., 83 AD3d 47 [2011]). In opposition, the defendantsfailed to raise a triable issue of fact as to whether the plaintiff was comparatively at faultin the happening of the accident.[*2]
Therefore, the Supreme Court properly grantedthe plaintiff's motion for summary judgment on the issue of liability. Skelos, J.P., Balkin,Leventhal and Sgroi, JJ., concur.