Valore v. McIntosh

Jun 28, 2004
Versions:8 A.D.3d 662
779 N.Y.S.2d 782
2004 N.Y. App. Div. LEXIS 9132

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated September 10, 2003, which denied their motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

This case involves a motor vehicle accident which occurred on July 2, 2002, at the intersection of Old Town Road and Wilson Street in Staten Island. The evidence submitted by the plaintiffs in support of their motion did not establish as a matter of law that the injured plaintiff was free from comparative negligence (see Thoma v Ronai, 82 NY2d 736 [1993]; Romano v 202 Corp., 305 AD2d 576 [2003]; Eastmond v Wen Po Wong, 300 AD2d 344 [2002]; Millus v Milford, 289 AD2d 543 [2001]). The plaintiffs’ failure to meet their prima facie burden of demonstrating entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), rendered the sufficiency of the defendant’s opposition papers academic (see Lacagnino v Gonzalez, 306 AD2d 250 [2003]). Thus, the Supreme Court properly denied the plaintiffs’ motion for summary judgment on the issue of liability.

In light of our determination, we do not reach the parties’ remaining contentions. Smith, J.P., Krausman, Adams and Skelos, JJ., concur.