Opinion
2013-03-13
KAUNK SEN SU, respondent, v. Messeinga S.P. MENGANA, appellant.
Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), for appellant. Law Office of Ryan S. Goldstein, PLLC, Bronx, N.Y., for respondent.
Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), for appellant. Law Office of Ryan S. Goldstein, PLLC, Bronx, N.Y., for respondent.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Siegal, J.), entered April 3, 2012, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
On May 13, 2008, the defendant's vehicle allegedly struck the plaintiff's vehicle as both vehicles were traveling southbound on 12th Avenue near 43rd Street in Manhattan. Thereafter, the plaintiff commenced this action to recover damages for personal injuries. The Supreme Court granted the plaintiff's motion for summary judgment on the issue of liability.
In support of his motion for summary judgment on the issue of liability, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;Gonzalez v. Ceesay, 98 A.D.3d 1078, 1079, 951 N.Y.S.2d 200;Hernandez v. Tepan, 92 A.D.3d 721, 722, 938 N.Y.S.2d 475). “There can be more than one proximate cause of an accident” ( Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604). Thus, even if the defendant were negligent in failing to exercise reasonable care to avoid colliding with the plaintiff's vehicle ( see Hauswirth v. Transcare N.Y., Inc., 97 A.D.3d 792, 949 N.Y.S.2d 154;Hazzard v. Burrowes, 95 A.D.3d 829, 830, 943 N.Y.S.2d 213), the plaintiff's evidence, including statements recorded in a police accident report, did not establish, as a matter of law, the plaintiff's freedom from comparative fault ( see Hazzard v. Burrowes, 95 A.D.3d at 830–831, 943 N.Y.S.2d 213;Hernandez v. Tepan, 92 A.D.3d at 722, 938 N.Y.S.2d 475). Since the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law, we need not address the sufficiency of the defendant's opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The plaintiff's remaining contentions either are without merit or have been rendered academic by our determination.
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.