Becci v. Worldwide Flight Services, Inc.

88 A.D.3d 932, 931 N.Y.2d 535

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 2011
• Status: Published

Opinion

In an order dated November 5, 2009, the Supreme Court denied, as premature, the plaintiffs initial motion for summary judgment on the issue of liability, without prejudice to renewal. In support of his renewed motion for summary judgment on the issue of liability, the plaintiff demonstrated that he was walking in a warehouse while the defendant Shing Yung Tung, who was employed by the defendant Worldwide Flight Services, Inc., was operating a forklift in reverse. The forklift struck the plaintiff in the back, allegedly causing injuries. The evidence submitted by the plaintiff further demonstrated, prima facie, that he exercised due care while walking in the warehouse. This proof was sufficient to establish the plaintiffs prima facie entitlement to judgment as a matter of law on the issue of liability, including his freedom from comparative fault (see Lopez v WS Distrib., Inc., 34 AD3d 759 [2006]; see also Martinez v Kreychmar, 84 AD3d 1037 [2011]; Torres v American Bldg. Maintenance Co. of NY, 51 AD3d 905 [2008]). In opposition, the defendants failed to raise a triable issue of fact. The evidence submitted in connection with the plaintiffs renewed motion for summary judgment on the issue of liability does not support the defendants’ speculative assertions of comparative fault on the part of the plaintiff.

Accordingly, the Supreme Court properly granted the plaintiffs renewed motion for summary judgment on the issue of liability. Skelos, J.E, Balkin, Leventhal and Hall, JJ., concur.