& Tambasco, Melville, NY (Yamile Al-Sullami of counsel),
L. Forde, Eastchester, NY, for respondents.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, etc., the
defendant appeals, as limited by her brief, from so much of
an order of the Supreme Court, Richmond County (Minardo, J.)
dated April 14, 2016, as granted that branch of the
plaintiffs' motion which was for summary judgment on the
issue of liability and denied her application to conduct
that the order is modified, on the law, by deleting the
provision thereof granting that branch of the plaintiffs'
motion which was for summary judgment on the issue of
liability, and substituting therefor a provision denying that
branch of the motion; as so modified, the order is affirmed
insofar as appealed from, with costs to the defendant.
September 17, 2006, the plaintiff Igor Zhubrak (hereinafter
the injured plaintiff) allegedly was injured when the vehicle
he was operating on Wilson Avenue at or near its intersection
with Van Brunt Street in Staten Island came into contact with
a vehicle operated by the defendant on Van Brunt Street. At
the subject intersection, a stop sign controlled the traffic
proceeding on Van Brunt Street; there was no stop sign
controlling the traffic on Wilson Avenue. During the
liability phase of the bifurcated trial, the defendant
testified that she stopped at the stop sign and proceeded
into the intersection, whereupon she collided with the
injured plaintiff's car. The jury found that the
defendant did not operate her vehicle in a negligent manner.
The plaintiffs moved, inter alia, to set aside the jury
verdict in favor of the defendant on the issue of liability
as contrary to the weight of the evidence and for a new
trial. In a prior order, the Supreme Court granted that
branch of the motion and directed a new trial on the issue of
liability (see Zhubrak v Petro, 122 A.D.3d 922). The
defendant appealed and this Court affirmed, concluding that
"a fair interpretation of the evidence [at trial] does
not support the jury's finding that the defendant was not
negligent" (id. at 923).
the plaintiffs moved, inter alia, to restore the case to the
trial calendar and for summary judgment on the issue of
liability based on this Court's decision and order on the
prior appeal. This motion was supported only by their
attorney's affirmation and a copy of this Court's
decision and order. The plaintiffs argued that, on the prior
appeal, this Court "ruled that" the defendant's
actions at the time of the accident violated Vehicle and
Traffic Law §§ 1142(a) and 1172(a), which
constituted negligence as a matter of law. Thus, they argued,
the defendant's negligence was determined as a matter of
law and is now the law of the case.
pertinent to this appeal, the Supreme Court granted that
branch of the plaintiffs' motion which was for summary
judgment on the issue of liability, directed that the case
proceed to trial on the issue of threshold and damages only,
and denied the defendant's application to conduct further
discovery. The court's order was based on "the
decision of [this Court on the prior appeal], and the motion
of plaintiff." We reverse.
to the Supreme Court's determination, the question
decided by this Court on the prior appeal was whether the
jury's verdict on the issue of liability was contrary to
the weight of the evidence (see generally Lolik v Big V
Supermarkets, 86 N.Y.2d 744), and this Court never made
a determination as to liability as a matter of law. To the
contrary, this Court affirmed the determination that a new
trial on the issue of liability was warranted (see
Zhubrak v Petro, 122 A.D.3d at 922-923). In addition to
being inconsistent with this Court's decision on the
prior appeal, the plaintiffs' motion was unsupported by
any admissible evidence pertinent to the issue of the
defendant's liability in the happening of the accident.
Under these circumstances, the motion was procedurally
defective (see CPLR 3212[b]) and, in any event, the
plaintiffs failed to meet their "burden of establishing,
prima facie, not only that the defendant was negligent, but
that [they were] free from comparative fault" (Ramos
v Bartis, 112 A.D.3d 804, 804; see France Herly
Bien-Aime v Clare, 124 A.D.3d 814, 814; Brown v
Mackiewicz, 120 A.D.3d 1172, 1173). Accordingly, the
Supreme Court should have denied the plaintiffs' motion.
defendant's contention that the Supreme Court
improvidently exercised its discretion in denying her
application to conduct further discovery is without merit
(see generally CPLR 3101[a]; D'Aless ...