Scibelli v. Hopchick

Mar 28, 2006
Versions:27 A.D.3d 720
810 N.Y.S.2d 924

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated April 20, 2005, which denied that branch of his motion which was for summary judgment on the issue of liability on the first cause of action.

Ordered that the order is affirmed, with costs.

In support of his motion for summary judgment, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of liability on the first cause of action (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). “There can be more than one proximate cause of an accident” (Cox v Nunez, 23 AD3d 427 [2005]). On this record, even if the defendant Shirley Hopchick violated Vehicle and Traffic Law § 1141 by failing to yield the right-of-way to the plaintiff, the deposition testimony of both Hopchick and the plaintiff, which the plaintiff submitted in support of his motion, did not establish, as a matter of law, the plaintiff‘s freedom from comparative negligence (see Millus v Milford, 289 AD2d 543 [2001]). Thus, the Supreme Court properly denied that branch of the plaintiff‘s motion which was for summary judgment on the issue of liability on the first cause of action. Miller, J.P., Luciano, Lunn and Dillon, JJ., concur.