Gecaj v. DiFiglio

Mar 17, 2003
Versions:303 A.D.2d 548
756 N.Y.S.2d 463

—In an action to recover damages for *549personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered April 26, 2002, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. The defendant failed to sustain his initial burden of demonstrating] the absence of a triable issue of fact as to whether he exercised due care to avoid the subject accident (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Charles v Ball, 291 AD2d 367 [2002]; Ruocco v Mulhall, 281 AD2d 406 [2001]; Kiernan v Hendrick, 116 AD2d 779, 781-782 [1986]). The defendant’s failure to make a prima facie showing of his entitlement to judgment as a matter of law required the denial of his motion, regardless of the sufficiency of the plaintiffs’ opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Goldstein, J.P., Adams, Townes and Crane, JJ., concur.