Esurance v Braha

Esurance v Braha 2014 NY Slip Op 02748 Decided on April 23, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 23, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
ROBERT J. MILLER
HECTOR D. LASALLE, JJ.
2012-06736
(Index No. 1298/11)

[*1]Esurance, as subrogee of Eliyahou Sasson, respondent,

v

Ezra R. Braha, et al., appellants.




Adams, Hanson, Rego, Carlin, Hughes, Kaplan & Fishbein, Lake
Success, N.Y. (Jacqueline Doody of counsel), for appellants.
Billig Law, P.C., New York, N.Y. (Suzanne M. Billig of
counsel), for respondent.


DECISION & ORDER

In a subrogation action to recover amounts paid by the plaintiff to its insured for injury to property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), dated June 1, 2012, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability is denied.

This case arises from a two-vehicle collision involving a vehicle that was insured by the plaintiff and a vehicle that was owned by the defendant Ezra R. Braha and operated by the defendant Jill Braha (hereinafter the defendant driver). The plaintiff disbursed the sum of $29,997.78 to its insured to cover the alleged cost of damages sustained by its insured's vehicle as a result of that collision. Subsequently, the plaintiff, as subrogee of its insured, commenced this action against the defendants to recover the amount it had paid to the insured. The Supreme Court granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

Since there could have been more than one proximate cause of the subject accident, the plaintiff, in moving for summary judgment, had to establish, prima facie, that the defendant driver was negligent and that the driver of the insured's vehicle was free from comparative fault (see Thoma v Ronai, 82 NY2d 736, 737; Ramos v Bartis, 112 AD3d 804, 804; Pollack v Margolin, 84 AD3d 1341, 1342). Here, the plaintiff failed to meet its prima facie burden of establishing that the driver of its insured's vehicle was free from comparative fault (see Regans v Baratta, 106 AD3d 893, 894). Accordingly, that branch of the plaintiff's motion which was for summary judgment on the issue of liability should have been denied, without regard to the sufficiency of the papers submitted by the defendants in opposition (see id. at 894; Ayala v Jasons Towing, Inc., 105 AD3d 689, 690). [*2]
MASTRO, J.P., BALKIN, MILLER and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court