Matos v. Tai

124 A.D.3d 848, 998 N.Y.S.2d 905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 2015
• Docket: 2014-03309
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated February 11, 2014, which denied his motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

The plaintiff alleged that on December 6, 2011, as he was lawfully walking across Onderdonk Avenue at its intersection with Flushing Avenue in Ridgewood, he was struck by the defendants’ vehicle.

In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but also that the plaintiff was free from comparative fault (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Brown v Mackiewicz, 120 AD3d 1172, 1173 [2014]; Ramos v Bartis, 112 AD3d 804, 804 [2013]; Pollack v Margolin, 84 AD3d 1341, 1342 [2011]). The issue of comparative negligence generally is a question for the jury to decide (see Brandt v Zahner, 110 AD3d 752, 752 [2013]; Jahangir v Logan Bus Co., Inc., 89 AD3d 1064, 1064 [2011]).

Here, contrary to the plaintiffs contentions, he failed to establish, prima facie, that he was free from comparative fault in the happening of the accident, as there was conflicting evidence concerning the events leading up to the accident (see Thoma v Ronai, 82 NY2d at 737; Cator v Filipe, 47 AD3d 664, 664 [2008]; Albert v Klein, 15 AD3d 509, 510 [2005]). Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Mastro, J.E, Roman, Sgroi and Barros, JJ., concur.