ZUMMO v. HOLMES (2008)

Supreme Court, Appellate Division, First Department, New York.

Thomasina ZUMMO, Plaintiff-Appellant, v. Everett H. HOLMES, et al., Defendants-Respondents.

Decided: December 18, 2008

MAZZARELLI, J.P., GONZALEZ, CATTERSON, McGUIRE, ACOSTA, JJ.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant. White & McSpedon, P.C., New York (Tracey Lyn Jarzombek of counsel), for 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.

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 A.D.3d 827, 832 N.Y.S.2d 54 [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 A.D.3d 510, 775 N.Y.S.2d 348 [2004] ).

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