| Freeman v Tawil |
| 2014 NY Slip Op 04898 [119 AD3d 521] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Robert Freeman et al., Respondents, v SaraTawil et al., Appellants. |
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann,Jr., Jeffrey D. Present, and Arthur R. Simuro of counsel), for appellants.
Angiuli & Gentile, LLP, Staten Island, N.Y. (Alan Karmazin of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom an order of the Supreme Court, Kings County (Lewis, J.), dated April 26, 2013,which granted the plaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motionfor summary judgment on the issue of liability is denied.
The injured plaintiff, Robert Freeman, a sanitation worker, allegedly was struck byan automobile operated by the defendant Sara Tawil and owned by the defendant MeyerTawil as the injured plaintiff was proceeding on foot toward the back of his sanitationtruck on McDonald Avenue in Brooklyn. The injured plaintiff, and his wife suingderivatively, commenced this action to recover damages for personal injuries allegedlycaused by Sara Tawil's negligence. The plaintiffs moved for summary judgment on theissue of liability, and the Supreme Court granted the motion.
"To prevail on a motion for summary judgment on the issue of liability, aplaintiff
has the burden of establishing, prima facie, not only that the defendant was negligentbut that the plaintiff was free from comparative fault" (Lu Yuan Yang v Howsal CabCorp., 106 AD3d 1055, 1056 [2013]; see Thoma v Ronai, 82 NY2d 736,737 [1993]), "since there can be more than one proximate cause of an accident" (LuYuan Yang v Howsal Cab Corp., 106 AD3d at 1056; see Allen v Echols, 88 AD3d926, 927 [2011]). Where the movant has established his or her entitlement tojudgment as a matter of law, the opposing party may defeat the motion for summaryjudgment by submitting sufficient evidence to raise a triable issue of fact as to themoving party's comparative fault (see Thoma v Ronai, 82 NY2d at 737; Allenv Echols, 88 AD3d at 927).
Here, in support of their motion for summary judgment on the issue of liability, theplaintiffs established, prima facie, that the injured plaintiff had exercised due care andwas proceeding within his own lane of traffic immediately prior to the accident, and thus,that the alleged negligent operation of the defendants' vehicle was the sole proximatecause of the accident (see Lu [*2]Yuan Yang vHowsal Cab Corp., 106 AD3d at 1057). However, in response, the defendants raiseda triable issue of fact as to the injured plaintiff's comparative fault by submitting evidencethat the accident occurred after the injured plaintiff crossed into Sara Tawil's lane oftraffic. Accordingly, the Supreme Court should have denied the plaintiffs' motion forsummary judgment on the issue of liability (see Allen v Echols, 88 AD3d at926-927). Rivera, J.P., Balkin, Leventhal and Roman, JJ., concur.