Patricia L. Maziejka, appellant, v. Michael Lieberman, respondent. (2026)

Argued—January 22, 2026

DECISION & ORDER

C/

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), dated December 4, 2024.  The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence is granted.

On November 18, 2021, the plaintiff allegedly was injured while operating her vehicle in the right lane on Northern Boulevard in Roslyn when the driver's side of the plaintiff's vehicle was struck by the defendant's vehicle as the defendant attempted to enter the plaintiff's lane.  The plaintiff commenced this action to recover damages for personal injuries against the defendant.  Thereafter, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence.  In an order dated December 4, 2024, the Supreme Court denied the plaintiff's motion.  The plaintiff appeals.

“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” (Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 AD3d 1033, 1033–1034;  see Lema v. Parks, 241 AD3d 898, 898).  “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” (Diamond v. Comins, 194 AD3d 784, 785;  see Rodriguez v. City of New York, 31 NY3d 312, 324–325).  However, “the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence” (Poon v. Nisanov, 162 AD3d 804, 808;  see Diamond v. Comins, 194 AD3d at 785).

“A driver has a duty not to merge into a lane of moving traffic until it is safe to do so, and a violation of this duty constitutes negligence as a matter of law” (Houston v. McQuiller, 232 AD3d 732, 734;  see Vehicle and Traffic Law § 1128[a];  Jean–Pierre v. Wang Chiang Ho, 239 AD3d 836, 837).  A driver is also negligent if he or she “fails to see that which, through the proper use of one's senses, should have been seen” (Fogel v. Rizzo, 91 AD3d 706, 707;  see Salama v. Piccirillo, 223 AD3d 692, 693).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting transcripts of her deposition testimony and that of the defendant, which demonstrated that the defendant attempted to make a lane change when it was not safe to do so in violation of Vehicle and Traffic Law § 1128(a) (see Singh v. Jervis, 222 AD3d 900, 901).  The plaintiff also established, prima facie, that she was not at fault in the happening of the accident and that the defendant's negligence was the sole proximate cause of the accident (see id.;  Seizeme v. Levy, 208 AD3d 809).  Contrary to the defendant's contention, his testimony that the plaintiff was speeding was mere speculation, as he acknowledged that he did not see the plaintiff's vehicle prior to the accident (see Morante v. Blaney, 234 AD3d 679, 681;  Manzella v. County of Suffolk, 163 AD3d 796, 797–798;  Adobea v. Junel, 114 AD3d 818, 820).  In opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law, the defendant failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court