Ennen v. Fallico

Appellate Division of the Supreme Court of New York

Ennen v. Fallico

185 A.D.2d 631, 587 N.Y.S.2d 876, 1992 N.Y. App. Div. LEXIS 9157

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 14, 1992

StatusPublished

This text of 185 A.D.2d 631 (Ennen v. Fallico) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ennen v. Fallico, 185 A.D.2d 631, 587 N.Y.S.2d 876, 1992 N.Y. App. Div. LEXIS 9157 (N.Y. Ct. App. 1992).

Pincite

Opinion

Order unanimously reversed on the law without costs, motion denied and affirmative defense rein[632]*632stated. Memorandum: In this personal injury action arising out of an automobile collision between plaintiff wife (hereinafter plaintiff) and defendant, defendant appeals from an order granting plaintiff’s motion for partial summary judgment on the issues of defendant’s negligence and plaintiff’s contributory fault. We conclude that summary judgment was improperly granted to plaintiff. In the posture of this case, in which there are competing claims of negligence, plaintiff could sustain her burden on the motion for summary judgment only by conclusively establishing defendant’s negligence and her own freedom from contributory fault (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff’s submissions failed to establish the absence of triable questions of fact on those issues, and defendant’s opposing papers raised a triable question of fact whether plaintiff, by the exercise of due care, could have avoided the accident. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Partial Summary Judgment.) Present — Denman, P. J., Pine, Balio, Fallon and Doerr, JJ.

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Order unanimously reversed on the law without costs, motion denied and affirmative defense rein[632]*632stated. Memorandum: In this personal injury action arising out of an automobile collision between plaintiff wife (hereinafter plaintiff) and defendant, defendant appeals from an order granting plaintiff’s motion for partial summary judgment on the issues of defendant’s negligence and plaintiff’s contributory fault. We conclude that summary judgment was improperly granted to plaintiff. In the posture of this case, in which there are competing claims of negligence, plaintiff could sustain her burden on the motion for summary judgment only by conclusively establishing defendant’s negligence and her own freedom from contributory fault (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiff’s submissions failed to establish the absence of triable questions of fact on those issues, and defendant’s opposing papers raised a triable question of fact whether plaintiff, by the exercise of due care, could have avoided the accident. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Partial Summary Judgment.) Present — Denman, P. J., Pine, Balio, Fallon and Doerr, JJ.

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Bluebook (online)

185 A.D.2d 631, 587 N.Y.S.2d 876, 1992 N.Y. App. Div. LEXIS 9157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ennen-v-fallico-nyappdiv-1992.

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