| Gorenkoff v Nagar |
| 2014 NY Slip Op 05626 [120 AD3d 470] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| Justin Gorenkoff, Respondent, v Joseph Nagaret al., Appellants. |
Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn,N.Y., of counsel), for appellants.
Weiss & Rosenbloom, P.C., New York, N.Y. (Barry D. Weiss, AndreaKrugman Tessler, and Erik L. Gray of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (Lewis, J.), dated May 10, 2013, whichgranted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is denied.
On November 21, 2011, the plaintiff allegedly was injured as he alighted from ataxicab owned by the defendant Joseph Nagar and operated by the defendant Ismail A.Girgin. The plaintiff claims that as he was exiting the taxicab, the vehicle suddenlymoved, and he was struck by the frame of its rear-left door, causing him to fall to theground and sustain injuries. The Supreme Court granted the plaintiff's motion forsummary judgment on the issue of liability. We reverse.
In a personal injury action, to prevail on a motion for summary judgment on the issueof liability, a plaintiff has the burden of establishing, prima facie, not only that thedefendant was negligent, but that the plaintiff was free from comparative fault (seeThoma v Ronai, 82 NY2d 736, 737 [1993]; Pollack v Margolin, 84 AD3d 1341, 1342 [2011]; Mackenzie v City of NewYork, 81 AD3d 699, 700 [2011]), since there can be more than one proximatecause of an accident (seeLanigan v Timmes, 111 AD3d 797, 798 [2013]; Allen v Echols, 88 AD3d926, 926 [2011]; Bonilla vCalabria, 80 AD3d 720, 720 [2011]).
Here, in support of his motion for summary judgment on the issue of liability, theplaintiff relied, inter alia, upon his own deposition testimony and that of the defendanttaxicab driver. The plaintiff argued that the taxicab driver violated Vehicle and TrafficLaw § 1162 by moving the taxicab before it was safe to do so and thus, thedefendants were per se negligent. However, according to the deposition testimony of thetaxicab driver, when the taxicab had reached the requested location, the plaintiff asked tobe dropped off near the curb. According to the defendant taxicab driver, as he was in theprocess of acceding to this request, the plaintiff opened the door and attempted to exit thevehicle while it was still moving. Given the conflicting versions in the [*2]proffered testimony as to how the accident occurred, theplaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law(see Thoma v Ronai, 82 NY2d at 737; Burnett v Reisenauer, 107 AD3d 656 [2013]; Maiello v Kirchner, 98 AD3d481, 483 [2012]; Reyes vMarchese, 96 AD3d 926, 927 [2012]; Fogel v Rizzo, 91 AD3d 706, 707 [2012]). Accordingly,the Supreme Court should have denied the plaintiff's motion for summary judgment onthe issue of liability regardless of the sufficiency of the opposing papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The plaintiff's remaining contention is without merit. Rivera, J.P., Roman, Sgroi andLaSalle, JJ., concur.