LIEBERMAN v. GOLDHAGEN (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered November 22, 2005, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

 “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Here, the defendants failed to meet their initial burden of establishing entitlement to judgment as a matter of law.   Triable issues of fact exist, inter alia, as to whether the defendant Matthew Goldhagen was negligent in operating the vehicle registered to the defendant Susan Goldhagen and, if so, whether such negligence was a proximate cause of the accident (see generally Cucci v. Cucci, 31 A.D.3d 598, 819 N.Y.S.2d 88).   Since the defendants failed to meet their initial burden as the movants, the sufficiency of the plaintiff's opposition papers need not be considered (see Winegrad v. New York Univ. Med. Ctr., supra ).