Strauss v. Billig

Appellate Division of the Supreme Court of New York

Strauss v. Billig

78 A.D.3d 415, 909 N.Y.S.2d 724

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 4, 2010

StatusPublished

Cited by8 cases

This text of 78 A.D.3d 415 (Strauss v. Billig) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Strauss v. Billig, 78 A.D.3d 415, 909 N.Y.S.2d 724 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, New York County (George J. Silver, J.), entered February 25, 2010, which, in this action for personal [416]*416injuries, denied plaintiffs’ motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiffs established their entitlement to judgment as a matter of law in this action where plaintiff Franklin Strauss was injured when, while walking on a sidewalk, he was struck by a vehicle driven by defendant as it was turning into a driveway on premises owned by third-party defendant. Contrary to the motion court’s findings, triable issues regarding plaintiff’s comparative negligence in allegedly failing to keep a proper lookout for traffic in light of his testimony that he was looking straight ahead and that a pile of garbage bags on the sidewalk did not impede his ability to look right as he was walking in front of the driveway, do not warrant the denial of the motion.

Plaintiffs are not required to establish freedom from comparative negligence in order to obtain summary judgment in their favor on the issue of liability. Plaintiffs comparative negligence, if any, merely acts to diminish recovery in proportion to the culpable conduct of defendant (see CPLR 1411). It was not plaintiffs’ burden to demonstrate that defendant’s negligence was the sole proximate cause of his injuries (see Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 200 [2010]), and defendant failed to raise a triable issue of fact as to whether plaintiffs conduct was the sole proximate cause of his injuries.

Defendant failed to provide a proper evidentiary basis supporting her request for further discovery on the issue of liability (see e.g. Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 102-103 [2006], lv denied 8 NY3d 804 [2007]; CPLR 3212 [f]). Concur — Tom, J.P., McGuire, Acosta, Renwick and Freedman, JJ.

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Order, Supreme Court, New York County (George J. Silver, J.), entered February 25, 2010, which, in this action for personal [416]*416injuries, denied plaintiffs’ motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiffs established their entitlement to judgment as a matter of law in this action where plaintiff Franklin Strauss was injured when, while walking on a sidewalk, he was struck by a vehicle driven by defendant as it was turning into a driveway on premises owned by third-party defendant. Contrary to the motion court’s findings, triable issues regarding plaintiff’s comparative negligence in allegedly failing to keep a proper lookout for traffic in light of his testimony that he was looking straight ahead and that a pile of garbage bags on the sidewalk did not impede his ability to look right as he was walking in front of the driveway, do not warrant the denial of the motion.

Plaintiffs are not required to establish freedom from comparative negligence in order to obtain summary judgment in their favor on the issue of liability. Plaintiffs comparative negligence, if any, merely acts to diminish recovery in proportion to the culpable conduct of defendant (see CPLR 1411). It was not plaintiffs’ burden to demonstrate that defendant’s negligence was the sole proximate cause of his injuries (see Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 200 [2010]), and defendant failed to raise a triable issue of fact as to whether plaintiffs conduct was the sole proximate cause of his injuries.

Defendant failed to provide a proper evidentiary basis supporting her request for further discovery on the issue of liability (see e.g. Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 102-103 [2006], lv denied 8 NY3d 804 [2007]; CPLR 3212 [f]). Concur — Tom, J.P., McGuire, Acosta, Renwick and Freedman, JJ.

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Bluebook (online)

78 A.D.3d 415, 909 N.Y.S.2d 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strauss-v-billig-nyappdiv-2010.

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