Kuburovic v. Emsak

Opinion

Kuburovic v Emsak

2026 NY Slip Op 05091

August 26, 2026

Appellate Division, Second Department

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

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

Milija Kuburovic, appellant,

v

Gamil Emsak, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 26, 2026

2025-04916, (Index No. 713575/24)

Betsy Barros, J.P.

Lara J. Genovesi

Helen Voutsinas

Carl J. Landicino, JJ.

Levy & Borukh, PLLC, Rego Park, NY (Moshe Borukh of counsel), for appellant.

Nancy L. Isserlis (The Zweig Law Firm, P.C., Cedarhurst, NY [Jonah S. Zweig], of counsel), for respondents.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Denise N. Johnson, J.), dated March 24, 2025. The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained in a motor vehicle accident with a vehicle, which was owned by the defendant Gamil Emsak and operated by the defendant Arefin Raiyan (hereinafter the defendant driver), at the intersection of the Van Wyck Expressway and Jamaica Avenue in Queens County. The plaintiff moved for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence. In an order dated March 24, 2025, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033-1034; see Seizeme v Levy, 208 AD3d 809, 810). "A plaintiff's comparative fault, or lack thereof, is not a consideration in determining whether the plaintiff has made a prima facie showing on the issue of the defendant's liability" (Detoma v Dobson, 214 AD3d 948, 949; see Rodriguez v City of New York, 31 NY3d 312). "However, although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff" (Ali v Alam, 223 AD3d 642, 644; see Sapienza v Harrison, 191 AD3d 1028, 1029).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his own affirmation and a certified police accident report containing the defendant driver's admission. These submissions demonstrated that the plaintiff proceeded through the intersection with a green traffic light, and that the defendant driver's conduct [*2]was a proximate cause of the accident, as the defendant driver entered the intersection against a red traffic light and failed to yield the right-of-way to the plaintiff (see Degachi v Faridi, 230 AD3d 634, 635; Jiang-Hong Chen v Heart Tr., Inc., 143 AD3d 945). In opposition, however, the defendants raised triable issues of fact through the submission of the defendant driver's affirmation, wherein he stated that when he entered the intersection the traffic light was yellow (see Degachi v Faridi, 230 AD3d at 635; Amancio-Gonzalez v Medina, 223 AD3d 861, 862; Duvalsaint v Yupe-Garcia, 169 AD3d 864, 865). Contrary to the plaintiff's contention, the "credibility of the defendant driver's assertion in his [affirmation] that he did not make the statement attributed to him in the certified . . . police accident report is for a jury to determine" (Jean-Pierre v Wang Chiang Ho, 239 AD3d 836, 837; see Arnold v Shepitka, 231 AD3d 1105, 1106; Smith-Joyner v Barahona, 227 AD3d 924, 927; Imamkhodjaev v Kartvelishvili, 44 AD3d 619, 621).

Furthermore, the plaintiff failed to eliminate triable issues of fact as to his freedom from comparative fault in the accident with respect to that branch of his motion which was for summary judgment dismissing the defendants' affirmative defenses alleging comparative negligence (see Sanchez v Tropp, 219 AD3d 1547, 1549; Yubin Ni v Milio, 192 AD3d 816, 817; Merola v Beaird, 185 AD3d 679, 680; see also Schmitz v Pinto, 220 AD3d 681, 682).

Contrary to the defendants' contention, the plaintiff's motion was not premature (see Mahmud v Feng Ouyang, 208 AD3d 861, 862; Maliakel v Morio, 185 AD3d 1018, 1019).

The plaintiff's remaining contention is not properly before this Court.

Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court