DEMANT v. ROCHEVET (2007)

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated September 5, 2006, which granted the defendants' motion for summary judgment dismissing the complaint.

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

As the plaintiff Marc Demant (hereinafter the plaintiff) made a left turn into an intersection, a vehicle operated by the defendant Ronald J. Rochevet struck the plaintiff's vehicle.  The defendants failed to establish their prima facie entitlement to summary judgment (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642).  Rochevet failed to show that he kept a proper lookout and exercised due care to avoid colliding with the plaintiff's vehicle (see Scibelli v. Hopchick, 27 A.D.3d 720, 810 N.Y.S.2d 924;  Cox v. Nunez, 23 A.D.3d 427, 805 N.Y.S.2d 604;  Romano v. 202 Corp., 305 A.D.2d 576, 577, 759 N.Y.S.2d 365;  cf. Millus v. Milford, 289 A.D.2d 543, 735 N.Y.S.2d 202).

Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, the burden never shifted to the plaintiffs, and the sufficiency of the papers submitted in opposition to the motion need not be considered (see Winegrad v. New York Univ. Med. Ctr., supra at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Kolosovskiy v. Vitale, 7 A.D.3d 579, 775 N.Y.S.2d 882).