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Skoczek v. Delgado

Supreme Court of New York, Second Department

March 19, 2014

Carri Skoczek, appellant,
v.
Narcisco Delgado, respondent. Index No. 16840/12

Lance Ehrenberg, New York, N.Y. (Alan D. Handler of counsel), for appellant.

Brand Glick & Brand, P.C., Garden City, N.Y. (Antonia Bortone of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, SANDRA L. SGROI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated May 8, 2013, which denied her motion for summary judgment on the issue of liability, without prejudice to renewal upon the completion of discovery.

ORDERED that the order is affirmed, with costs.

On July 16, 2012, a weekday morning, the plaintiff was riding her bicycle westbound on Driggs Avenue in Brooklyn. At the intersection of Driggs and Graham Avenues, she was struck by the defendant's vehicle, which was traveling southbound on Graham Avenue. The only traffic control device at the intersection was a stop sign regulating the flow of traffic along Graham Avenue.

The plaintiff commenced this action against the defendant to recover damages for her alleged personal injuries. Shortly after the defendant answered the complaint, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court denied the plaintiff's motion without prejudice to renewal upon the completion of discovery.

The Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability, without prejudice to renewal upon the completion of discovery. Although the plaintiff bicyclist submitted evidence that the defendant motorist failed to yield the right of way to her in violation of Vehicle and Traffic Law § 1142(a), she failed to establish that this violation was the sole proximate cause of the accident or that she was free from comparative fault (see Stern v Amboy Bus Co., Inc., 102 A.D.3d 763, 763; Graeber-Nagel v Naranjan, 101 A.D.3d 1078; Simmons v Canady, 95 A.D.3d 1201, 1202). In light of the plaintiff's failure to meet her prima facie burden, we need not consider the sufficiency of the defendant's opposition papers (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).

DILLON, J.P., HALL, AUSTIN and SGROI, JJ., concur.


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