| Matos v Tai |
| 2015 NY Slip Op 00733 [124 AD3d 848] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| Angel L. Matos, Appellant, v Kui F. Tai et al.,Respondents. |
Robinson & Yablon, P.C., New York, N.Y. (Thomas Torto and Jason Levine ofcounsel), for appellant.
Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Huzelerof counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Martin, J.), dated February 11, 2014, whichdenied his motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that on December 6, 2011, as he was lawfully walking acrossOnderdonk Avenue at its intersection with Flushing Avenue in Ridgewood, he wasstruck by the defendants' vehicle.
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 also that the plaintiff was free from comparative fault(see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Brown v Mackiewicz, 120AD3d 1172, 1173 [2014]; Ramos v Bartis, 112 AD3d 804, 804 [2013]; Pollack v Margolin, 84 AD3d1341, 1342 [2011]). The issue of comparative negligence generally is a question forthe jury to decide (see Brandt vZahner, 110 AD3d 752, 752 [2013]; Jahangir v Logan Bus Co., Inc., 89 AD3d 1064, 1064[2011]).
Here, contrary to the plaintiff's contentions, he failed to establish, prima facie, that hewas free from comparative fault in the happening of the accident, as there was conflictingevidence concerning the events leading up to the accident (see Thoma v Ronai,82 NY2d at 737; Cator vFilipe, 47 AD3d 664, 664 [2008]; Albert v Klein, 15 AD3d 509, 510 [2005]). Accordingly,the Supreme Court properly denied the plaintiff's motion for summary judgment on theissue of liability, regardless of the sufficiency of the opposing papers (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Mastro, J.P., Roman, Sgroi and Barros,JJ., concur.