FESTAGALLO v. MANDELBAUM (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Francois A. Rivera, J.), dated January 28, 2021.  The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

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

The plaintiff pedestrian allegedly was injured when she was struck by a vehicle operated by the defendant Chana Mandelbaum and owned by the defendant Israeibcda Mandelbaum.  Thereafter, the plaintiff commenced this action against the defendants to recover damages for personal injuries.

Prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability.  In an order dated January 28, 2021, the Supreme Court, among other things, granted that branch of the motion.  The defendants appeal.

“ ‘A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries’ ” (Wray v. Galella, 172 A.D.3d 1446, 1447, 101 N.Y.S.3d 401, quoting Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033–1034, 83 N.Y.S.3d 74).  “To be entitled to summary judgment on the issue of a defendant's liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence” (Maliakel v. Morio, 185 A.D.3d 1018, 1019, 129 N.Y.S.3d 99;  see Rodriguez v. City of New York, 31 N.Y.3d 312, 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366;  Jackson v. Klein, 203 A.D.3d 1147, 163 N.Y.S.3d 438;  Sooklall v. Morisseav–Lafague, 185 A.D.3d 1079, 1081, 128 N.Y.S.3d 266;  Odetalla v. Rodriguez, 165 A.D.3d 826, 827, 85 N.Y.S.3d 560).

Contrary to the defendants’ contentions, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of her affidavit, which demonstrated that she was walking within a crosswalk, with a pedestrian signal in her favor, when the defendants’ vehicle failed to yield the right-of-way and struck her (see Gooden v. EAN Holdings, LLC, 189 A.D.3d 1552, 1552, 135 N.Y.S.3d 303;  Maliakel v. Morio, 185 A.D.3d at 1019, 129 N.Y.S.3d 99;  Hai Ying Xiao v. Martinez, 185 A.D.3d 1014, 1015, 126 N.Y.S.3d 369;  Gaston v. Vertsberger, 176 A.D.3d 919, 919–920, 111 N.Y.S.3d 314;  Lazarre v. Gragston, 164 A.D.3d 574, 575, 81 N.Y.S.3d 541).  In opposition, the defendants failed to raise a triable issue of fact.

Contrary to the defendants’ contention, the plaintiff's motion was not premature.  The defendants “failed to offer an evidentiary basis to suggest that additional discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of the plaintiff” (Gooden v. EAN Holdings, LLC, 189 A.D.3d at 1552–1553, 135 N.Y.S.3d 303;  see CPLR 3212[f]).  “The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff's motion” (Lazarre v. Gragston, 164 A.D.3d at 575, 81 N.Y.S.3d 541).

In light of our determination, we need not reach the defendants’ remaining contentions.

Accordingly, the Supreme Court properly granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

BRATHWAITE NELSON, J.P., RIVERA, DOWLING and VOUTSINAS, JJ., concur.