| Cabrera v Magussen |
| 2015 NY Slip Op 05901 [130 AD3d 664] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Pablo Cabrera, Appellant, v Jack C. Magussen,Respondent. |
Sacco & Fillas, LLP, Astoria, N.Y. (Nissim Abaev of counsel), forappellant.
Laurie DiPreta, Jericho, N.Y., for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Solomon, J.), dated March 27, 2014, whichgranted the defendant's motion for summary judgment dismissing the complaint anddenied his cross motion for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the defendant's motion for summary judgment dismissing the complaint, andsubstituting therefor a provision denying the motion; as so modified, the order isaffirmed, without costs or disbursements.
The plaintiff allegedly was injured while he was riding his bicycle on College PointBoulevard, southbound, in Queens, when he came into contact with a vehicle operated bythe defendant.
In support of the defendant's motion for summary judgment dismissing thecomplaint, he submitted, inter alia, the transcripts of his deposition testimony as well asthe plaintiff's deposition testimony. Given the differing testimony as to how this accidentoccurred, the defendant failed to establish, prima facie, that he was not at fault in thehappening of the subject accident and that the alleged negligence of the plaintiff was thesole proximate cause of the subject accident (see Arias v Tiao, 123 AD3d 857, 859 [2014]; Calderon-Scotti v Rosenstein,119 AD3d 722, 724 [2014]). Since the defendant failed to demonstrate his primafacie entitlement to judgment as a matter of law, the Supreme Court should have deniedhis motion, regardless of the sufficiency of the plaintiff's opposition papers (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
The Supreme Court properly denied the plaintiff's cross motion for summaryjudgment on the issue of liability. The plaintiff, in support of his cross motion, failed toestablish, prima facie, his freedom from comparative fault in the happening of the subjectaccident and that the defendant's alleged violation of Vehicle and Traffic Law§ 1141 was the sole proximate cause of the accident (see Koeppel-Vulpis v Lucente,110 AD3d 851, 852 [2013]). Since the plaintiff failed to establish his prima facieentitlement to judgment as a matter of law, his cross motion was properly denied (seeAlvarez v Prospect Hosp., 68 NY2d at 324). Rivera, J.P., Dickerson, Miller andDuffy, JJ., concur.