BINYAMINOV v. SATTERLEE (2024)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered October 2, 2023.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendant George Satterlee and dismissing that defendant's second affirmative defense.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendant George Satterlee and another defendant to recover damages for personal injuries that the plaintiff allegedly sustained when his vehicle, which was traveling straight, collided with a vehicle operated by Satterlee, which was attempting to enter the parking lot of a shopping center after making a left turn from the middle of the street.  The Supreme Court denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Satterlee and dismissing Satterlee's second affirmative defense, alleging culpable conduct on the part of the plaintiff.  The plaintiff appeals.

Here, the plaintiff failed to demonstrate, prima facie, his entitlement to judgment as a matter of law on the issue of liability against Satterlee.  In support of his motion, the plaintiff submitted a copy of his affidavit and the certified police accident report, which failed to eliminate triable issues of fact as to whether, when Satterlee initiated his turn, the plaintiff's vehicle was “so close as to constitute an immediate hazard” (Vehicle and Traffic Law § 1141).  The plaintiff also failed to establish, prima facie, that he was not comparatively at fault in the happening of the accident (see Aponte v. Vani, 155 A.D.3d 929, 930–931, 64 N.Y.S.3d 123;  Arias v. Tiao, 123 A.D.3d 857, 858, 1 N.Y.S.3d 133;  see generally Simmons v. Canady, 95 A.D.3d 1201, 1202–1203, 945 N.Y.S.2d 138).  Since the plaintiff failed to meet his initial burden as the movant, the burden never shifted to Satterlee to submit evidence sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Satterlee and dismissing Satterlee's second affirmative defense, alleging culpable conduct on the part of the plaintiff.

DILLON, J.P., MILLER, DOWLING and VOUTSINAS, JJ., concur.