| Incle v Byrne-Lowell |
| 2014 NY Slip Op 01583 [115 AD3d 709] |
| March 12, 2014 |
| Appellate Division, Second Department |
| Albert Incle, Respondent, v Ruthanne M.Byrne-Lowell et al., Appellants, et al., Defendants. |
—[*1] Bradley Gillam, Melville, N.Y. (Huy M. Le of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendantsRuthanne M. Byrne-Lowell and James R. Lowell, Jr., appeal, as limited by their brief,from so much of an order of the Supreme Court, Richmond County (McMahon, J.), datedJune 26, 2012, as denied their motion for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
"There can be more than one proximate cause of an accident" (Cox v Nunez, 23 AD3d427, 427 [2005]; seeBurnett v Reisenauer, 107 AD3d 656, 656 [2013]; Graeber-Nagel v Naranjan,101 AD3d 1078, 1078 [2012]; Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; Kim v Acosta, 72 AD3d648, 648 [2010]). Therefore, a movant seeking summary judgment is required tomake a prima facie showing that he or she is free from comparative fault (see Burnettv Reisenauer, 107 AD3d at 656; Graeber-Nagel v Naranjan, 101 AD3d at1078; Pollack v Margolin, 84 AD3d at 1342; Mackenzie v City of New York, 81 AD3d 699, 699 [2011];Bonilla v Gutierrez, 81AD3d 581, 582 [2011]; Roman v A1 Limousine, Inc., 76 AD3d 552, 552 [2010]).
Here, in support of their motion for summary judgment, the appellants submitted,inter alia, transcripts of the deposition testimony of the parties, which presentedconflicting versions of the material facts surrounding the happening of the accident.Under these circumstances, the appellants failed to establish their prima facie entitlementto judgment as a matter of law on the issue of comparative fault (see Burnett vReisenauer, 107 AD3d at 656; Simmons v Canady, 95 AD3d 1201, 1203 [2012]).Accordingly, the appellants' motion for summary judgment was properly denied, withoutregard to the sufficiency of the plaintiff's papers in opposition (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Burnett v Reisenauer, 107 AD3dat 656; Simmons v Canady, 95 AD3d at 1203). Skelos, J.P., Dickerson,Chambers and Miller, JJ., concur.