Ayala v. Pascarelli

2019 NY Slip Op 575

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 2019
• Docket: 8248 306555/12
• Status: Published

Opinion

Ayala v Pascarelli (2019 NY Slip Op 00575)

Ayala v Pascarelli

2019 NY Slip Op 00575

Decided on January 29, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 29, 2019
Renwick, J.P., Richter, Mazzarelli, Webber, Kern, JJ.

8248 306555/12

[*1]Juliette Ayala, Plaintiff—Appellant,

v

James M. Pascarelli, et al., Defendants—Respondents.

Ephrem J. Wertenteil, New York, for appellant.

Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for respondents.

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about August 15, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff made a prima facie showing of negligence on the part of defendant Pascarelli by submitting Pascarelli's deposition testimony, which stated that the accident at issue occurred when he moved the backhoe into a lane of moving traffic (see Vehicle and Traffic Law § 1163[a]; Flores v City of New York, 66 AD3d 599 [1st Dept 2009]). Plaintiff was not required to demonstrate her own freedom from comparative negligence nor to show that defendants' negligence was the sole proximate cause to

be entitled to summary judgment as to defendants' liability (see Rodriguez v City of New York, 31 NY3d 312 [2018]; Derix v Port Auth. of N.Y. & N.J., 162 AD3d 522 [1st Dept 2018]; Bermeo v Time Warner Entertainment Co., 162 AD3d 404 [1st Dept 2018]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2019

DEPUTY CLERK