| Boulos v Lerner-Harrington |
| 2015 NY Slip Op 00486 [124 AD3d 709] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Nadia Boulos, Respondent, v Suzanne M.Lerner-Harrington, Also Known as Suzanne M. Harrington and Another, et al.,Defendants, and Michael C. Johnson et al., Appellants. |
David S. Kritzer & Associates, P.C., Smithtown, N.Y., for appellants.
Weiser & Associates LLP, New York, N.Y. (Edward V. Spark and Nicole S.Weiser of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Michael C.Johnson and United Parcel Service, Inc., appeal from an order of the Supreme Court,Suffolk County (Farneti, J.), dated November 12, 2013, which denied their motion forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
On June 30, 2009, the plaintiff, while operating a vehicle near the intersection ofMiddle Country Road and Fairview Street in Suffolk County, allegedly was injured whena truck owned by the defendant United Parcel Service, Inc. (hereinafter UPS), andoperated by the defendant Michael C. Johnson collided with her vehicle as she was in theprocess of making a right turn. Johnson and UPS (hereinafter together the UPSdefendants) moved for summary judgment dismissing the complaint insofar as assertedagainst them. The Supreme Court denied the motion. The UPS defendants appeal.
A defendant moving for summary judgment in a negligence action has the burden ofestablishing, prima facie, that he or she was not at fault in the happening of the subjectaccident (see Calderon-Scotti vRosenstein, 119 AD3d 722, 723 [2014]; Pollack v Margolin, 84 AD3d 1341, 1342 [2011]). Indetermining a motion for summary judgment, the evidence must be viewed in the lightmost favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 AD3d 895[2009]).
Here, in moving for summary judgment, the UPS defendants submitted evidence,including a transcript of the deposition testimony of the plaintiff, which presentedconflicting accounts as to how and why the subject accident occurred. The defendantsthus failed to establish, prima facie, that Johnson was not negligent in the operation ofUPS's vehicle (see generallyBullock v Calabretta, 119 AD3d 884 [2014]; Bonaventura v Galpin, 119 AD3d 625 [2014]; Veltri v Solomon, 107 AD3d699 [2013]; Allen vEchols, 88 AD3d 926 [2011]). In light of the UPS defendants' failure to meettheir prima facie burden, we need not review the sufficiency of the plaintiff's oppositionpapers (see Winegrad v New [*2]York Univ. Med.Ctr., 64 NY2d 851 [1985]).
Accordingly, the Supreme Court properly denied the UPS defendants' motion forsummary judgment dismissing the complaint insofar as asserted against them. Dillon,J.P., Hinds-Radix, Maltese and Barros, JJ., concur.