AGATI v. WANDEL (2008)

In related actions to recover damages for personal injuries, the defendant in Action No. 1 appeals from so much of an order of the Supreme Court, Kings County (Balter, J.), dated November 20, 2006, as granted that branch of the motion of the plaintiff in that action which was for summary judgment on the issue of liability in that action.

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

The plaintiff in Action No. 1 made a prima facie showing of entitlement to judgment as a matter of law by presenting evidence which demonstrated that the sole proximate cause of the accident in question was the failure of the defendant in that action to yield the right-of-way as required by Vehicle & Traffic Law § 1141 (see e.g. Spivak v. Erickson, 40 A.D.3d 962, 836 N.Y.S.2d 676;  Aristizabal v. Aristizabal, 37 A.D.3d 503, 829 N.Y.S.2d 701).   In opposition, that defendant failed to come forward with any evidence sufficient to raise a triable issue of fact (see e.g. Almonte v. Tobias, 36 A.D.3d 636, 829 N.Y.S.2d 153;  Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89).   Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability in Action No. 1.