Padilla v. Package Pavement Co., Inc.
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Padilla v Package Pavement Co., Inc.
2026 NY Slip Op 04779
July 29, 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.
Joan Padilla, respondent,
v
Package Pavement Company, Inc., et al., appellants, et al., defendant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 29, 2026
2024-12499, (Index No. 528306/23)
Betsy Barros, J.P.
Helen Voutsinas
Donna-Marie E. Golia
Phillip Hom, JJ.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant Package Pavement Company, Inc.
Brand Glick Brand, P.C., East Meadow, NY (Robert S. Mazzuchin and Amanda S. Reynolds of counsel), for appellant J.M.G. Trucking, Inc.
Robert A. Flaster, P.C., New York, NY (Jonathan A. Fier of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Package Pavement Company, Inc., and J.M.G. Trucking, Inc., appeal from an order of the Supreme Court, Kings County (Katherine A. Levine, J.), dated September 25, 2024. The order granted the plaintiff's motion for summary judgment on the issue of liability against those defendants and dismissing their affirmative defenses alleging comparative negligence.
ORDERED that the order is reversed, on the law, with one bill of costs, and the plaintiff's motion for summary judgment on the issue of liability against the defendants Package Pavement Company, Inc., and J.M.G. Trucking, Inc., and dismissing their affirmative defenses alleging comparative negligence is denied.
The plaintiff alleged that she sustained personal injuries when her vehicle was struck by a tractor-trailer. She commenced this action against Package Pavement Company, Inc., which owned the trailer, J.M.G. Trucking, Inc., which owned the tractor, and "John Doe-driver," who drove the tractor-trailer.
The plaintiff moved for summary judgment on the issue of liability against Package Pavement Company, Inc., and J.M.G. Trucking, Inc. (hereinafter together the defendants), and dismissing their affirmative defenses alleging comparative negligence, contending that the tractor-trailer entered her lane of traffic and struck her vehicle. In an order dated September 25, 2024, the Supreme Court granted the plaintiff's motion. The defendants appeal.
"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 generally Rodriguez v City of New York, 31 NY3d 312). "Although a plaintiff is not required to establish his or her freedom from comparative negligence, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff seeks summary judgment dismissing an [*2]affirmative defense alleging comparative negligence" (Higashi v M & R Scarsdale Rest., LLC, 176 AD3d 788, 789; see Fernandez v Paris Limousine Servs., 244 AD3d 816; Sapienza v Harrison, 191 AD3d 1028, 1029).
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue liability against the defendants. Specifically, the plaintiff submitted evidence demonstrating that the driver of the tractor-trailer failed to operate the tractor-trailer as nearly as practicable entirely within a single lane and moved from his lane when it was not safe to do so, which resulted in the accident (see Vehicle and Traffic Law § 1128[a]; Jean-Pierre v Wang Chiang Ho, 239 AD3d 836, 837; Singh v Jervis, 222 AD3d 900, 901). The plaintiff also demonstrated, prima facie, that she was not at fault in the happening of the accident (see Jean-Pierre v Wang Chiang Ho, 239 AD3d at 837; Singh v Jervis, 222 AD3d at 901; cf. Lu Yan Li v Yong Hua Zhen, 232 AD3d 872, 873).
In opposition, however, the defendants submitted an affidavit of the driver of the tractor-trailer, which raised triable issues of fact as to the circumstances surrounding the accident, whether the driver was negligent, and whether the plaintiff was free from fault in the happening of the accident. "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Stukas v Streiter, 83 AD3d 18, 23 [internal quotation marks omitted]; see Jean-Pierre v Wang Chiang Ho, 239 AD3d at 837; Smith-Joyner v Barahona, 227 AD3d 924, 926).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability against the defendants and dismissing their affirmative defenses alleging comparative negligence.
BARROS, J.P., VOUTSINAS, GOLIA and HOM, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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