Asante v. Williams

227 A.D.2d 123, 641 N.Y.S.2d 317, 1996 N.Y. App. Div. LEXIS 4769

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered December 21, 1995, which granted plaintiff’s motion for partial summary judgment against defendants-respondents-appellants on the issue of liability, without prejudice to defendants’ claim of comparative negligence against the codefendants, or to defendants’ claim that plaintiff did not sustain a serious injury, unanimously affirmed, without costs.

Plaintiff’s assertion that the car in which he was a passenger was struck from behind by a car owned and operated by defendants established a prima facie case of defendants’ negligence, and absent any explanation from defendants for the collision, was sufficient to entitle plaintiff to summary judgment against defendants on the issue of liability (Aromando v City of New York, 202 AD2d 617, quoting Silberman v Surrey Cadillac Limousine Serv., 109 AD2d 833). We note that such finding, however, does not resolve any pertinent apportionment of fault between the defendants, including the owner and operator of the car in which plaintiff was a passenger (see, Silberman v Surrey Cadillac Limousine Serv., supra). Concerning the issue of serious injury, it was plaintiff’s burden to make a prima facie showing of such on his motion for summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853); having failed to do so, the issue was properly left for trial.

We have considered the parties’ other arguments for affirmative relief and find them to be without merit. Concur— Rosenberger, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.