Strauss v. Billig

Nov 4, 2010
Versions:78 A.D.3d 415
909 N.Y.S.2d 724

Order, Supreme Court, New York County (George J. Silver, J.), entered February 25, 2010, which, in this action for personal injuries, denied plaintiffs’ motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiffs established their entitlement to judgment as a matter of law in this action where plaintiff Franklin Strauss was injured when, while walking on a sidewalk, he was struck by a vehicle driven by defendant as it was turning into a driveway on premises owned by third-party defendant. Contrary to the motion court’s findings, triable issues regarding plaintiff’s comparative negligence in allegedly failing to keep a proper lookout for traffic in light of his testimony that he was looking straight ahead and that a pile of garbage bags on the sidewalk did not impede his ability to look right as he was walking in front of the driveway, do not warrant the denial of the motion.

Plaintiffs are not required to establish freedom from comparative negligence in order to obtain summary judgment in their favor on the issue of liability. Plaintiff’s comparative negligence, if any, merely acts to diminish recovery in proportion to the culpable conduct of defendant (see CPLR 1411). It was not plaintiffs’ burden to demonstrate that defendant’s negligence was the sole proximate cause of his injuries (see Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 200 [2010]), and defendant failed to raise a triable issue of fact as to whether plaintiff’s conduct was the sole proximate cause of his injuries.

Defendant failed to provide a proper evidentiary basis supporting her request for further discovery on the issue of liability (see e.g. Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 102-103 [2006], lv denied 8 NY3d 804 [2007]; CPLR 3212 [f]). Concur—Tom, J.P., McGuire, Acosta, Renwick and Freedman, JJ.