Matos v Tai

Matos v Tai

Opinion

 [**905]  [*848] 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  [**906]  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, 621 NE2d 690, 602 NYS2d 323 [1993]; Brown v Mackiewicz, 120 AD3d 1172, 1173, 992 NYS2d 314 [2014]; Ramos v Bartis, 112 AD3d 804, 804, 977 NYS2d 315 [2013]; Pollack v Margolin, 84 AD3d 1341, 1342, 924 NYS2d 282 [2011]). The issue of comparative negligence generally is a question for the jury to decide (see Brandt v Zahner, 110 AD3d 752, 752, 974 NYS2d 482 [2013]; Jahangir v Logan Bus Co., Inc., 89 AD3d 1064, 1064, 933 NYS2d 402 [2011]).

Here, contrary [***2]  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, 850 NYS2d 510 [2008]; Albert v Klein, 15 AD3d 509, 510, 789 NYS2d 684 [2005]). 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, 501 NE2d 572, 508 NYS2d 923 [1986]). Mastro, J.P., Roman, Sgroi and Barros, JJ., concur.

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