Gardella v. Esposito Foods, Inc.

Appellate Division of the Supreme Court of New York

Gardella v. Esposito Foods, Inc.

80 A.D.3d 660, 914 N.Y.S.2d 678

Appellate Division of the Supreme Court of the State of New York·Decided January 18, 2011·Published·Cited by 12 cases

Opinion

— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Starkey, J.), dated December 21, 2009, which denied his motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427, 427 [2005]; see Topalis v Zwolski, 76 AD3d 524 [2010]; Todd v Godek, 71 AD3d 872, 872 [2010]). Under the circumstances here, even if the defendant driver violated Vehicle and Traffic Law §§ 1143 and 1211 (a), the bare affidavit of the plaintiff did not establish, as a matter of law, the plaintiff’s freedom from comparative negligence (see generally Cali v Mustafa, 68 AD3d 700, 701 [2009]; cf. Sanabria v Paduch, 61 AD3d 839 [2009]).

Accordingly, the Supreme Court correctly denied the plaintiffs motion for summary judgment on the issue of liability. Dickerson, J.P., Leventhal, Hall and Austin, JJ., concur.

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— In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Starkey, J.), dated December 21, 2009, which denied his motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427, 427 [2005]; see Topalis v Zwolski, 76 AD3d 524 [2010]; Todd v Godek, 71 AD3d 872, 872 [2010]). Under the circumstances here, even if the defendant driver violated Vehicle and Traffic Law §§ 1143 and 1211 (a), the bare affidavit of the plaintiff did not establish, as a matter of law, the plaintiff’s freedom from comparative negligence (see generally Cali v Mustafa, 68 AD3d 700, 701 [2009]; cf. Sanabria v Paduch, 61 AD3d 839 [2009]).

Accordingly, the Supreme Court correctly denied the plaintiffs motion for summary judgment on the issue of liability. Dickerson, J.P., Leventhal, Hall and Austin, JJ., concur.

Gardella v. Esposito Foods, Inc., 80 A.D.3d 660, 914 N.Y.S.2d 678 (N.Y. Ct. App. 2011).

Pincite

80 A.D.3d 660 (Gardella v. Esposito Foods, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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