Nestor Estrada, appellant, v. DAILEY (2009)

In an action to recover damages for personal injuries, the plaintiff Nestor Estrada appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered November 18, 2008, which denied his motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

 The plaintiff Nestor Estrada (hereinafter the plaintiff) established that collateral estoppel effect should be given to the plea of guilty entered by the defendant Vincent M. Dailey (hereinafter the defendant) to the offense of vehicular assault in the second degree, thereby establishing the defendant's negligence as a proximate cause of the accident (see Blaich v. Van Herwynen, 37 A.D.3d 387, 388, 829 N.Y.S.2d 639;  Martin v. Geico Direct Ins., 31 A.D.3d 505, 818 N.Y.S.2d 265;  Comprehensive Med. Care of N.Y., P.C. v. Hausknecht, 55 A.D.3d 777, 865 N.Y.S.2d 692).   However, the plaintiff failed to establish as a matter of law that he was free from culpable conduct with regard to the causation of his injuries (see CPLR 1411;  Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365;  Beck v. Northside Medical, 46 A.D.3d 499, 846 N.Y.S.2d 662;  Regan v. Ancoma, Inc., 11 A.D.3d 1016, 782 N.Y.S.2d 480;  Halvorsen v. Ford Motor Co., 132 A.D.2d 57, 522 N.Y.S.2d 272).   An individual who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur.   That risk should be considered as part of the analysis of the comparative negligence of the passenger and the operator of the vehicle (see generally Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d at 166-170, 490 N.Y.S.2d 751, 480 N.E.2d 365;  Beck v. Northside Medical, 46 A.D.3d at 500, 846 N.Y.S.2d 662;  Regan v. Ancoma, Inc., 11 A.D.3d at 1016, 782 N.Y.S.2d 480;  Halvorsen v. Ford Motor Co., 132 A.D.2d at 62, 522 N.Y.S.2d 272).   Since triable issues of fact exist as to the comparative negligence of the plaintiff and the defendant, the plaintiff failed to meet his prima facie burden of demonstrating entitlement to judgment as a matter of law (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;  see also Sale v. Lee, 49 A.D.3d 854, 853 N.Y.S.2d 888;  Valore v. McIntosh, 8 A.D.3d 662, 779 N.Y.S.2d 782), and the Supreme Court properly denied his motion for summary judgment on the issue of liability.