| Zhu v Natale |
| 2015 NY Slip Op 06586 [131 AD3d 607] |
| August 19, 2015 |
| Appellate Division, Second Department |
[*1]
| Jimmy Zhu, Appellant, v Anthony Natale et al.,Respondents. |
Gana LLP, New York, N.Y. (Adam Gana and Daniel Gwertzman of counsel), forappellant.
Rawle & Henderson, LLP, New York, N.Y. (Steven R. Montgomery andBenjamin J. Smith of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Walker, J.), dated December 12, 2014, whichdenied his motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is granted.
On October 1, 2013, the plaintiff was walking in a crosswalk on the south side of theintersection of 17th Avenue and 84th Street in Brooklyn, when an ambulance maintainedand controlled by the defendant Richmond County Ambulance Services and operated bythe defendant Anthony Natale, allegedly struck him in the crosswalk as it made a left turnfrom 84th Street onto 17th Avenue.
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 that the plaintiff was free from comparative fault (seeThoma v Ronai, 82 NY2d 736, 737 [1993]; Gorenkoff v Nagar, 120 AD3d 470, 470 [2014]), sincethere can be more than one proximate cause of an accident (see Lanigan v Timmes, 111AD3d 797, 798 [2013]; Pollack v Margolin, 84 AD3d 1341, 1342 [2011]). Where aplaintiff has established his or her prima facie entitlement to judgment as a matter of law,the opposing party may defeat the motion by submitting sufficient evidence to raise atriable issue of fact as to the plaintiff's comparative fault (see Lu Yuan Yang v Howsal CabCorp., 106 AD3d 1055 [2013]; Sirot v Troiano, 66 AD3d 763, 764 [2009]).
The plaintiff established his prima facie entitlement to judgment as a matter of lawby submitting evidence demonstrating that, before entering the crosswalk at thesouthwest corner of 84th Street and 17th Avenue and during the course of crossing thestreet, he looked both ways for oncoming vehicles and that, as he was crossing 17thAvenue within the crosswalk, with the pedestrian control and traffic control devices inhis favor, Natale failed to yield the right-of-way to [*2]him (see Kusz v New York City Tr. Auth., 88 AD3d 768 [2011];Martinez v Kreychmar, 84AD3d 1037, 1038 [2011]; Lariviere v New York City Tr. Auth., 82 AD3d 1165, 1166[2011]; Qamar v Kanarek,82 AD3d 860, 861 [2011]; Klee v Americas Best Bottling Co., Inc., 60 AD3d 911[2009]). The evidence submitted by the plaintiff demonstrated that Natale violatedVehicle and Traffic Law § 1111 (a) (1) and that the plaintiff was not atcomparative fault in the happening of the accident. In opposition, the defendantssubmitted Natale's affidavit, which contradicted his earlier deposition testimony, andmerely raised what appear to be feigned issues of fact designed to avoid theconsequences of his earlier deposition testimony. Thus, the affidavit failed to raise atriable issue of fact and was insufficient to defeat the plaintiff's motion (see Viviano v KeyCorp, 128AD3d 811 [2015]; Bardalesv VAM Realty Corp., 124 AD3d 707 [2015]; Bluth v Bias Yaakov Academy forGirls, 123 AD3d 866 [2014]; Rivera v J. Nazzaro Partnership, L.P., 122 AD3d 826[2014]; Capasso v Capasso,84 AD3d 997, 998 [2011]).
Accordingly, the Supreme Court should have granted the plaintiff's motion forsummary judgment on the issue of liability. Mastro, J.P., Leventhal, Roman and Miller,JJ., concur.