| Anjum v Bailey |
| 2014 NY Slip Op 08792 [123 AD3d 852] |
| December 17, 2014 |
| Appellate Division, Second Department |
[*1](December 17, 2014)
| Nazir Anjum, Appellant, v Tenika R. Bailey etal., Respondents. |
Arnold I. Bernstein, White Plains, N.Y., for appellant.
Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for respondent Tenika R.Bailey.
Karen L. Lawrence, Tarrytown, N.Y. (David Holmes of counsel), for respondentNixon J. Mejia.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Westchester County (Lefkowitz, J.), dated October 25,2013, which denied his motion for summary judgment on the issue of liability, with leaveto renew upon the completion of discovery.
Ordered that the order is affirmed, with one bill of costs.
This appeal involves a motor vehicle accident that occurred on New Main Street nearPalisades Avenue in Yonkers, New York. The plaintiff alleges that he was seated in ataxi that was legally parked on New Main Street, which is a one-way, westbound-onlyroadway, when the defendant Tenika R. Bailey pulled out of a parking space on theopposite side of the street. Bailey's vehicle hit a vehicle driven by the defendant Nixon J.Mejia, which allegedly caused Mejia's vehicle to strike the plaintiff's taxi as it was stillparked. The plaintiff commenced this action to recover damages for personalinjuries.
Although depositions of the parties had not yet been conducted, the plaintiff movedfor summary judgment on the issue of liability against Bailey and Mejia. Bailey opposedthe motion arguing, inter alia, that she was not negligent, as she was sideswiped by Mejiawhile he tried to drive through a green light at Palisades Avenue. An MV-104A accidentreport submitted with Bailey's opposition papers indicated that Mejia stated at the scenethat his vehicle was struck by Bailey. Mejia did not submit an affidavit in opposition tothe motion, though his attorney argued that the plaintiff's motion for summary judgmentwas premature. The Supreme Court denied the plaintiff's motion for summary judgment,with leave to renew upon the completion of discovery.
A party seeking summary judgment bears the initial burden of establishing primafacie entitlement to such relief, tendering sufficient evidence to eliminate any materialissues of fact from the case (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562[1980]). In a personal injury action, to prevail on a motion for summary [*2]judgment on the issue of liability, a plaintiff has the burdenof establishing, prima facie, not only that a defendant was negligent, but also that he orshe was free from comparative fault (see Thoma v Ronai, 82 NY2d 736, 737[1993]; Espinoza v Coco-ColaBottling Co. of N.Y., Inc., 121 AD3d 640 [2014]; Gorenkoff v Nagar, 120 AD3d470 [2014]; Lu Yuan Yangv Howsal Cab Corp., 106 AD3d 1055, 1055-1056 [2013]). Here, the plaintiffestablished, prima facie, that Mejia was negligent by virtue of coming into contact withthe plaintiff's vehicle, that Bailey was negligent by pulling her vehicle out of her parkingspace when it was unsafe to do so in violation of Vehicle and Traffic Law§ 1162, and that he was free from comparative fault, as he was merelyseated within a legally parked vehicle at the time of the accident. However, Bailey'sopposition papers, which included her affidavit and the MV-104A accident report form,raised triable issues of fact as to whether Bailey or Mejia were individually nonnegligent,which prevents the plaintiff from obtaining summary judgment against either defendant.This matter involves more than simply a trier of fact's apportionment of fault betweenboth defendants (see Rodriguezv Farrell, 115 AD3d 929 [2014]; Medina v Rodriguez, 92 AD3d 850, 851 [2012]; Garciav Tri-County Ambulette Serv., 282 AD2d 206, 207 [2001]), since conceivably, onedefendant or the other could be found to be nonnegligent.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment on the issue of liability, with leave to renew upon the completion of discovery.Dillon, J.P., Dickerson, Austin and Cohen, JJ., concur.