| Adams v Bruno |
| 2015 NY Slip Op 00319 [124 AD3d 566] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1](January 14, 2015)
| Michael Adams, an Infant, by His Father and NaturalGuardian, James Adams, et al., Appellants, v Michael Bruno et al.,Respondents. |
Bergman, Bergman, Goldberg & Lamonsoff, LLP, Hicksville, N.Y. (Seth Fieldsand Allen Goldberg of counsel), for appellants.
Grogan & Souto, P.C., Goshen, N.Y. (Edward P. Souto of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Rockland County (Loehr, J.), dated July 25, 2013, whichdenied their motion for summary judgment on the issue of liability and, upon searchingthe record, awarded summary judgment to the defendant dismissing the second cause ofaction.
Ordered that the order is affirmed, with costs.
This personal injury action arises from an incident which occurred when the plaintiffMichael Adams (hereinafter the infant plaintiff) was 17 years old and the defendantMichael Bruno was 18 years old. The plaintiffs allege that the infant plaintiff sustainedphysical injuries when he was thrown from the hood of a moving vehicle operated byBruno in a high school parking lot. After discovery, the plaintiffs moved for summaryjudgment on the issue of liability, and the Supreme Court denied the motion.
In determining a motion for summary judgment, evidence must be viewed in the lightmost favorable to the nonmoving party, and all reasonable inferences must be resolved infavor of the nonmoving party (see Valentin v Parisio, 119 AD3d 854 [2014]; Escobar v Velez, 116 AD3d735 [2014]; Bravo vVargas, 113 AD3d 579, 582 [2014]; Green v Quincy Amusements, Inc., 108 AD3d 591, 592[2013]). Since there can be more than one proximate cause of an accident (see Sirlin v Schreib, 117 AD3d819 [2014]; Haberman vBurke, 116 AD3d 921 [2014]; Lu Yuan Yang v Howsal Cab Corp., 106 AD3d 1055, 1056[2013]), a plaintiff moving for summary judgment on the issue of liability in an actionalleging negligence must establish, prima facie, not only that the defendant was negligentbut that the plaintiff was free from comparative fault (see Thoma v Ronai, 82NY2d 736, 737 [1993]; Valentin v Parisio, 119 AD3d 854, 854 [2014]; Freeman v Tawil, 119 AD3d521 [2014]; Sirlin v Schreib, 117 AD3d at 819). The issue of comparativefault is generally a question for the jury to decide (see Rodriguez v Klein, 116 AD3d 939 [2014]; Regans v Baratta, 106 AD3d893 [2013]; Shui-Kwan Luiv Serrone, 103 AD3d 620 [2013]).
In support of their motion, the plaintiffs submitted exhibits including the transcriptsof the deposition testimony of the infant plaintiff and Bruno. Based on thosesubmissions, particularly the infant plaintiff's testimony as to how the accident occurred,it cannot be said as a [*2]matter of law that the infantplaintiff exercised reasonable care. Whether his actions in jumping on the hood of thedefendants' stopped, but running, car constituted comparative fault is a question of fact.Therefore, the plaintiffs failed to make a prima facie showing of entitlement to judgmentas a matter of law on the issue of liability, because they failed to establish the infantplaintiff's freedom from comparative fault. Accordingly, the Supreme Court properlydenied the plaintiffs' motion for summary judgment on the issue of liability (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The plaintiffs' remaining contentions are without merit. Hall, J.P., Cohen,Hinds-Radix and LaSalle, JJ., concur.