Cali v. Mustafa

Dec 1, 2009
Versions:68 A.D.3d 700
888 N.Y.2d 912

Giovanni Cali et al., Respondents, v Izeddin Mustafa et al., Appellants. [888 NYS2d 912]—

Contrary to the Supreme Court‘s determination, the plaintiff Giovanni Cali (hereinafter Giovanni) failed to satisfy his prima facie burden of establishing his entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Viewing the evidence submitted in support of the plaintiffs’ motion in the light most favorable to the nonmoving party (see Fundamental Portfolio Advisors, Inc. v Tocqueville Asset Mgt., L.P., 7 NY3d 96, 105-106 [2006]; Marine Midland Bank v Dino & Artie‘s Automatic Transmission Co., 168 AD2d 610 [1990]), there is a triable issue of fact as to whether comparative negligence on Giovanni‘s part contributed to the subject motor vehicle accident (see Eastmond v Wen Po Wong, 300 AD2d 344 [2002]). Although the defendant‘s direction of travel was controlled by a stop sign at the intersection where the accident occurred, Giovanni‘s affidavit, submitted in support of the motion, did not establish, as a matter of law, that Giovanni was free from comparative negligence (see Sale v Lee, 49 AD3d 854 [2008]; Scibelli v Hopchick, 27 AD3d 720 [2006]; Hernandez v Bestway Beer & Soda Distrib., 301 AD2d 381 [2003]; Eastmond v Wen Po Wong, 300 AD2d 344 [2002]; Millus v Milford, 289 AD2d 543 [2001]; King v Washburn, 273 AD2d 725 [2000]).

Since the plaintiffs failed to meet their burden as the movants, we need not review the sufficiency of the defendants’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Valore v McIntosh, 8 AD3d 662 [2004]).

Accordingly, the plaintiffs’ motion for summary judgment on the issue of liability should have been denied. Mastro, J.P., Belen, Hall and Austin, JJ., concur.