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Ortiz v. Welna

Supreme Court of New York, Second Department

July 19, 2017

Nicole Ortiz, plaintiff,
v.
Jaruslaw Welna, et al., appellants. Deborah Ortiz, respondent, Index No. 12171/14

          Argued - May 1, 2017

         D52760 T/afa

          McCabe, Collins, McGeough, Fowler, Levine & Nogan, LLP, Carle Place, NY (Patrick Murphy and Doron Rosenheck of counsel), for appellants.

          William Schwitzer & Associates, P.C., New York, NY (Howard R. Cohen of counsel), for respondent.

          MARK C. DILLON, J.P. SYLVIA O. HINDS-RADIX HECTOR D. LASALLE FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.), dated March 24, 2016, which granted the motion of the plaintiff Deborah Ortiz for summary judgment as to her on the issue of the defendants' liability.

         ORDERED that the order is reversed, on the law, with costs, and the motion of the plaintiff Deborah Ortiz for summary judgment on the issue of the defendants' liability is denied.

         On April 1, 2014, the plaintiff Deborah Ortiz (hereinafter the injured plaintiff) was a front seat passenger in a vehicle owned by her and operated by the plaintiff Nicole Ortiz. The plaintiffs allege that the vehicle was stopped on Church Avenue at its intersection with East 10th Street, in Brooklyn, waiting to make a left turn, when it was struck from behind by a vehicle owned by the defendant Greco Brothers Concrete and operated by the defendant Jaruslaw Welna. On August 20, 2014, the plaintiffs commenced this action seeking damages, inter alia, for personal injuries. Prior to discovery, the injured plaintiff moved for summary judgment as to her on the issue of the defendants' liability. The Supreme Court granted her motion, and the defendants appeal.

         "To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault" (Phillip v D&D Carting Co., Inc., 136 A.D.3d 18, 22; see Ricciardi v Nelson, 142 A.D.3d 492; Bowen v Farrell, 140 A.D.3d 1001; Roberts v Zirkind, 140 A.D.3d 940). Thus, "a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident'' (Phillip v D &D Carting Co., 136 A.D.3d at 23; see Adobea v Junel, 114 A.D.3d 818; Ramos v Bartis, 112 A.D.3d 804; Allen v Echols, 88 A.D.3d 926, 927). The issue of comparative fault is generally a question for the jury to decide (see Rodriguez v Klein, 116 A.D.3d 939; Regans v Baratta, 106 A.D.3d 893; Shui-Kwan Lui v Serrone, 103 A.D.3d 620). In rear-end accident cases, just because a plaintiff is a passenger in the lead vehicle, the liability of the rear vehicle is not automatically established. Such a plaintiff moving for summary judgment on the issue of liability "must meet the twofold burden of establishing that he or she was free from comparative fault and was, instead, an innocent passenger, and, separately, that the operator of the rear vehicle was at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, . . . summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger" (Phillip v D & D Carting Co., 136 A.D.3d at 24; see Anjum v Bailey, 123 A.D.3d 852; Pinilla v New York City Tr. Auth., 122 A.D.3d 703).

         Here, the injured plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her affidavit which demonstrated that she was not negligent in the happening of the accident, as she was an innocent passenger, and that the actions of the defendant driver, Welna, were the sole proximate cause of the accident (see Graham v Courtesy Transp. Servs., Inc., 145 A.D.3d 966, 967; Ortiz v Hub Truck Rental Corp., 82 A.D.3d 725, 726; Davidoff v Mullokando v, 74 A.D.3d 862, 863). However, in opposition, the defendants raised a triable issue of fact as to whether Nicole Ortiz contributed to the happening of the accident by the submission of Welna's affidavit, which alleged that she violated Vehicle and Traffic Law § 1163 by stopping abruptly in the intersection to turn left without signaling (see Gleason v Villegas, 81 A.D.3d 889; Costa v Eramo, 76 A.D.3d 942; Gaeta v Carter, 6 A.D.3d 576). Accordingly, the Supreme Court should not have granted the injured plaintiff's motion for summary judgment on the issue of the defendants' liability (see Anjum v Bailey, 123 A.D.3d at 852; Pinilla v New York City Tr. Auth., 122 A.D.3d at 703).

         The defendants' contention that the Supreme Court should have denied the injured plaintiff's motion for summary judgment because she failed to include the defendants' answer and her reply to the defendants' counterclaim with her motion papers is improperly raised for the first time on appeal (see Petrozza v Franzen,109 A.D.3d 650; Provident Bank v Giannasca,55 A.D.3d 812). ...


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