Zhi You Zhang, appellant-respondent, v. Alex Ubaldo, et al., respondents-Appellants. (2026)

Submitted—January 8, 2026

DECISION & ORDER

C/

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated September 11, 2024.  The order, insofar as appealed from, denied the plaintiff's motion for summary judgment on the issue of liability.  The order, insofar as cross-appealed from, denied the defendants' cross-motion for summary judgment dismissing the amended complaint.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff commenced this action against the defendants to recover damages for personal injuries he alleged he sustained in August 2022 when he was involved in a collision between his electric scooter and the defendants' vehicle.  Thereafter, the plaintiff moved for summary judgment on the issue of liability, and the defendants cross-moved for summary judgment dismissing the amended complaint.  In an order dated September 11, 2024, the Supreme Court, inter alia, denied the plaintiff's motion and the defendants' cross-motion.  The plaintiff appeals, and the defendants cross-appeal.

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries” (Montalvo v. Cedeno, 170 AD3d 1166, 1167;  see Rodriguez v. City of New York, 31 NY3d 312).  “A plaintiff is not required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability” (Martin v. Copado–Esquivel, 226 AD3d 668, 670;  see Rodriguez v. City of New York, 31 NY3d at 312).

Here, in support of his motion, the plaintiff submitted, inter alia, transcripts of his deposition testimony and that of the defendant Alex Ubaldo (hereinafter the defendant driver).  The parties' deposition testimony regarding the collision conflicted, raising issues of credibility, and revealed the existence of factual disputes as to how and why the collision occurred (see Erazo v. Mains, 240 AD3d 858, 859;  Kutsankou v. Brink's Inc., 222 AD3d 855, 856).  Moreover, the dashcam video submitted by the plaintiff was insufficient to establish, as a matter of law, that the defendant driver was negligent in the happening of the collision, and if so, whether any such negligence caused or contributed to the collision (see Godwin v. Ricapito, 242 AD3d 961, 962;  Miah v. Lugo, 240 AD3d 682, 683).  Since the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability, the Supreme Court properly denied his motion, without regard to the sufficiency of the defendants' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Boulos v. Lerner–Harrington, 124 AD3d 709, 709;  see Morante v. Blaney, 234 AD3d 679, 680).  “Evidence of negligence is not enough by itself to establish liability.  It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint” (Sheehan v. City of New York, 40 N.Y.2d 496, 501).  “A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se” (Beityaaghoob v. Klein, 216 AD3d 724, 725 [alterations and internal quotation marks omitted];  see Morante v. Blaney, 234 AD3d at 680).  “There can be more than one proximate cause of an accident” (Estate of Cook v. Gomez, 138 AD3d 675, 676–677), and, “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” (Kalland v. Hungry Harbor Assoc., LLC, 84 AD3d 889, 889;  see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974).  “However, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts” (Kalland v. Hungry Harbor Assoc., LLC, 84 AD3d at 889;  see Howard v. Poseidon Pools, 72 N.Y.2d at 974).

Here, the evidence submitted in support of the defendants' cross-motion, including transcripts of the deposition testimony of the plaintiff and the defendant driver, failed to establish, prima facie, that the defendant driver was free from fault in the happening of the collision or that the plaintiff's actions were the sole proximate cause of the collision (see Smith–Joyner v. Barahona, 227 AD3d 924, 927;  Schmitz v. Pinto, 220 AD3d 681, 682–683).  Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the amended complaint, the Supreme Court properly denied their cross-motion, without regard to the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853).

DUFFY, J.P., WOOTEN, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court