Korsunskiy v. Careful Bus Service, Inc.

116 A.D.3d 674, 983 N.Y.S.2d 290

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 2014
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.), dated October 23, 2012, as granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability is denied.

This action arises from an automobile accident which occurred on the Prospect Expressway in Brooklyn. The plaintiff Arkadiy Korsunskiy (hereinafter the injured plaintiff) allegedly sustained injuries when a bus operated by the defendant Giacoma Castelli and owned by the defendant Careful Bus Service, Inc., collided with the vehicle he was driving. The injured plaintiff, and his wife suing derivatively, commenced this action against the defendants to recover damages for personal injuries. After issue was joined, the plaintiffs moved, inter alla, for summary judgment on the issue of liability, and the Supreme Court granted that branch of the motion.

The evidence submitted by the plaintiffs in support of their motion for summary judgment on the issue of liability did not establish, prima facie, that the injured plaintiff was free from comparative fault (see Valore v McIntosh, 8 AD3d 662 [2004]). Accordingly, the Supreme Court should have denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability, without regard to the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Valore v McIntosh, 8 AD3d at 662-663). Mastro, J.E, Balkin, Miller and LaSalle, JJ., concur.