

Matos v Tai (2015 NY Slip Op 00733)





Matos v Tai


2015 NY Slip Op 00733


Decided on January 28, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on January 28, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
BETSY BARROS, JJ.


2014-03309
 (Index No. 18081/12)

[*1]Angel L. Matos, appellant, 
vKui F. Tai, et al., respondents.


Robinson & Yablon, P.C., New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant.
Lewis, Brisbois, Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Huzeler of counsel), for respondents.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), dated February 11, 2014, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
The plaintiff alleged that on December 6, 2011, as he was lawfully walking across Onderdonk Avenue at its intersection with Flushing Avenue in Ridgewood, he was struck by the defendants' vehicle.
In a personal injury action, to prevail on a motion for summary judgment on the issue of liability, a plaintiff has the burden of establishing, prima facie, not only that the defendant was negligent, but also that the plaintiff was free from comparative fault (see Thoma v Ronai, 82 NY2d 736, 737; Brown v Mackiewicz, 120 AD3d 1172, 1173; Ramos v Bartis, 112 AD3d 804, 804; Pollack v Margolin, 84 AD3d 1341, 1342). The issue of comparative negligence generally is a question for the jury to decide (see Brandt v Zahner, 110 AD3d 752, 752; Jahangir v Logan Bus Co., Inc., 89 AD3d 1064, 1064).
Here, contrary to the plaintiff's contentions, he failed to establish, prima facie, that he was free from comparative fault in the happening of the accident, as there was conflicting evidence concerning the events leading up to the accident (see Thoma v Ronai, 82 NY2d at 737; Cator v Filipe, 47 AD3d 664, 664; Albert v Klein, 15 AD3d 509, 510). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).
MASTRO, J.P., ROMAN, SGROI and BARROS, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


