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Supreme Court of New York, Appellate Division, Second Department
June 2, 2021, Decided
2019-12074 (Index No. 701851/18)
[*646] [**630] DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), dated September 17, 2019. The order granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the first affirmative defense, alleging comparative negligence, is denied.
In February 2018, the plaintiff commenced this action against the defendant to recover damages for personal injuries that he alleged that he sustained in October 2017 when the plaintiff's vehicle and the defendant's vehicle collided at an intersection in Queens. The plaintiff moved for summary judgment on the issue [***2] of liability [**631] and dismissing the first affirmative defense, alleging comparative negligence. In an order dated September 17, 2019, the Supreme Court granted the plaintiff's motion. The defendant appeals. We reverse.
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries (see e.g. Rodriguez v City of New York, 31 NY3d 312, 319-320, 76 N.Y.S.3d 898, 101 N.E.3d 366; Maher v Vargas-Bonilla, 191 AD3d 867, 868, 138 N.Y.S.3d 912). In addition, the issue of a plaintiff's comparative negligence may be decided in the context of a plaintiff's motion for summary judgment on the issue of liability where, as here, the plaintiff also seeks dismissal of the defendant's affirmative defense alleging comparative negligence (see Poon v Nisanov, 162 AD3d 804, 808, 79 N.Y.S.3d 227).
[*647] Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law. In support of his motion, the plaintiff submitted his deposition testimony and the deposition testimony of the defendant. Inasmuch as the deposition testimony of the defendant and that of the plaintiff raised triable issues of fact as to who had the right of way, the plaintiff's submissions failed to eliminate all triable [***3] issues of fact as to whether the defendant was negligent (see e.g. Maher v Vargas-Bonilla, 191 AD3d at 868; Poon v Nisanov, 162 AD3d at 807-808) and [****2] whether the plaintiff was free from comparative negligence (see generally Flores v Rubenstein, 175 AD3d 1490, 1491, 109 N.Y.S.3d 390; Aponte v Vani, 155 AD3d 929, 930-931, 64 N.Y.S.3d 123).
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195 A.D.3d 646 *; 144 N.Y.S.3d 630 **; 2021 N.Y. App. Div. LEXIS 3568 ***; 2021 NY Slip Op 03476 ****; 2021 WL 2213332
[****1] Gustavo Ramirez, respondent, v Pema Wangdu, appellant.
Notice: THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION.
THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
comparative negligence, issue of liability, affirmative defense, summary judgment motion, deposition testimony, triable issue of fact, summary judgment, personal injury, prima facie, appeals