Muzammil v. Singh

275 A.D.2d 398, 712 N.Y.S.2d 875, 2000 N.Y. App. Div. LEXIS 8830

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an or der of the Supreme Court, Queens County (Golia, J.), dated September 24, 1999, which denied their motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

We agree with the Supreme Court that in opposition to the plaintiffs showing of a prima facie case on the issue of liability, the defendants raised material issues of fact. Thus, summary judgment was properly denied (see, Epstein v Scally, 99 AD2d 713). Moreover, where, as here, the failure to wear a seat belt is alleged to be the cause of the accident, the conduct of the plaintiff Javed Muzammil in failing to wear a seat belt may be considered on the issue of liability (see, Roach v Szatko, 244 AD2d 470). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.