Melchiorre v. Dreisch

May 1, 2012
Versions:95 A.D.3d 845
942 N.Y.S.2d 892

ANNE MARIE MELCHIORRE, Respondent, v MATTHEW N. DREISCH, Appellant. [942 NYS2d 892]—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Maltese, J.), dated June 7, 2011, 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.

In support of her motion for summary judgment on the issue of liability, the plaintiff failed to establish, prima facie, that she used due care in crossing the street and, thus, that the defendant‘s alleged negligent operation of his vehicle was the sole proximate cause of the accident (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Cohn v Khan, 89 AD3d 1052, 1053 [2011]; Roman v A1 Limousine, Inc., 76 AD3d 552 [2010]; Yuen Lum v Wallace, 70 AD3d 1013, 1014 [2010]). The plaintiff‘s failure to meet her prima facie burden required denial of her motion without regard to the sufficiency of the defendant‘s opposition papers (see Yuen Lum v Wallace, 70 AD3d at 1014). Balkin, J.P., Leventhal, Roman and Sgroi, JJ., concur.