JAKABOVICS v. ROSENBERG (2008)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated January 31, 2007, as denied that branch of their motion which was for summary judgment on the issue of liability.

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

The infant plaintiff sustained personal injuries when he was struck by the defendant's motor vehicle when the defendant was backing out of his driveway.   After commencing this action, the plaintiff mother of the infant plaintiff moved, on their behalf, inter alia, for summary judgment on the issue of liability.   The evidence submitted in support of the motion, consisting, inter alia, of the defendant's deposition testimony in which he testified that he was proceeding at less than five miles per hour, looking in all of the car's mirrors and looking backward, as he backed the vehicle out of the driveway, failed to establish a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  “Failure to make such prima facie showing requires a denial” of that branch of the motion which was for summary judgment on the issue of liability, “regardless of the sufficiency of the opposing papers” (id. at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).