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Zummo v. Holmes

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 18, 2008

THOMASINA ZUMMO, PLAINTIFF-APPELLANT,
v.
EVERETT H. HOLMES, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered September 20, 2007, which, in an action for personal injuries arising out of a motor vehicle accident, denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, the motion granted and the matter remanded for further proceedings.

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.

Mazzarelli, J.P., Gonzalez, Catterson, McGuire, Acosta, JJ.

14337/06

Plaintiff made a prima facie showing of entitlement to summary judgment on the issue of liability. Plaintiff was driving in the right lane when defendant Holmes, who was driving a tractor trailer in the lane to plaintiff's left, attempted to merge into plaintiff's lane when his lane ended, at which point the tractor trailer struck plaintiff's vehicle (see Williams v New York City Tr. Auth., 37 AD3d 827 [2007]; Vehicle and Traffic Law § 1128[a]). In opposition, defendants failed raise a triable issue of fact as to comparative negligence on the part of plaintiff (see Neryaev v Solon, 6 AD3d 510 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081218

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