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Phillips v. Diodato

Supreme Court of New York, Second Department

October 16, 2013

Anthony Phillips, respondent,
v.
Donald Diodato, appellant. Index No. 18497/09

James G. Bilello, Westbury, N.Y. (Patricia McDonagh of counsel), for appellant.

WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated April 27, 2012, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly determined that the defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law. In support of his motion, the defendant submitted his deposition testimony and the plaintiff's deposition testimony. The testimony provided conflicting accounts as to the manner in which the subject accident occurred and, thus, the defendant failed to establish, prima facie, that the plaintiff was negligent in the operation of his bicycle and that any such negligence was the sole proximate cause of the accident (see Silverman v Johnson, 94 A.D.3d 860; Fogel v Rizzo, 91 A.D.3d 706; Allen v Echols, 88 A.D.3d 926). In light of the defendant's failure to meet his prima facie burden, we need not review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

Accordingly, the Supreme Court properly denied the defendant's motion for summary judgment dismissing the complaint.

MASTRO, J.P., ANGIOLILLO, LEVENTHAL and CHAMBERS, JJ., concur.


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