| Haberman v Burke |
| 2014 NY Slip Op 02751 [116 AD3d 921] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Carol A. Haberman, Appellant, v James H. Burke,Respondent. |
—[*1] Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (James Katz and Robert Lifson ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from somuch of an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated March 30,2012, as denied that branch of her motion which was for summary judgment on the issueof liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a pedestrian, allegedly was injured when she was struck by thedefendant's vehicle as it was backing out of a driveway. Thereafter, the plaintiffcommenced this action to recover damages for personal injuries. The Supreme Court,inter alia, subsequently denied that branch of the plaintiff's motion which was forsummary judgment on the issue of liability.
Contrary to the plaintiff's contention, the Supreme Court properly denied that branchof her motion which was for summary judgment on the issue of liability, as she failed tomeet her initial burden of establishing her prima facie entitlement to judgment as a matterof law. "To prevail on a motion for summary judgment on the issue of liability in anaction alleging negligence, a plaintiff has the burden of establishing, prima facie, notonly that the defendant was negligent, but that the plaintiff was free from comparativefault, since there can be more than one proximate cause of an accident" (Ramos v Bartis, 112 AD3d804, 804 [2013] [citations omitted]; see Thoma v Ronai, 82 NY2d 736, 737[1993]; Sperling vAkesson, 104 AD3d 840, 841 [2013]). In support of her motion for summaryjudgment, the plaintiff submitted evidence including a transcript of her depositiontestimony, in which she testified that she was walking her dog in the street in the dark atthe time of the accident. Although the plaintiff testified that she "was looking all around"and "looking in general" at the time of the accident, she did not observe the defendant'svehicle until immediately prior to the collision, and she did not remember hearing anynoise emanating from the defendant's vehicle, or seeing any headlights. Thus, theplaintiff's evidentiary submissions failed to eliminate all triable issues of fact as towhether she was free from comparative fault (see Thoma v Ronai, 82 NY2d at737; Burnett v Reisenauer,107 AD3d 656, 656 [2013]; Day v MTA Bus Co., 94 AD3d 940, 941 [2012]; Sale v Lee, 49 AD3d 854,854 [2008]).[*2]
Since the plaintiff failed to establish her primafacie entitlement to judgment as a matter of law, the Supreme Court properly denied hermotion, regardless of the sufficiency of the defendant's opposition papers (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Skelos, J.P., Dillon, Hall andRoman, JJ., concur.