Irving v Doreen Express Cab Corp.

[*1] Irving v Doreen Express Cab Corp. 2018 NY Slip Op 50684(U) Decided on May 10, 2018 Supreme Court, New York County Silvera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2018
Supreme Court, New York County



Mary B. Irving, Plaintiff,

against

Doreen Express Cab Corp., et al., Defendants.





155893/2016



Plaintiff's Atty:
Roura & Melamed
233 Broadway, Suite 2700
New York, NY 10279
(212) 227-6821

Defendants' Atty: Baker McEvoy Morrissey & Moskovits, P.C.
1 Metrotech Center, 8th Floor
Brooklyn, NY 11201
(212) 857-8230
Adam Silvera, J.

This motion for summary judgment, pursuant to CPLR 3212, is granted on the issue of liability against defendants Doreen Express Cab Corp. and Nitai C. Sarker. Defendants oppose the motion and allege that plaintiff is comparatively negligent. Plaintiff Mary B. Irving's complaint alleges that on June 16, 2016, at the intersection of Madison Avenue and 91st Street in the County, City, and State of New York, she was struck from behind by defendant's reversing vehicle. Here, plaintiff's motion has made out a prima facie case of negligence, and the burden shifts to defendant to raise a triable issue of fact. (See Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; see also Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Under Vehicle and Traffic Law § 1211(a), "a driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic." The Court of Appeals has held that a plaintiff is entitled to partial summary judgment on the issue of a defendant's liability even if a defendant raises an issue of fact regarding plaintiff's comparative negligence (Rodriguez v City of New York, —NE3d &mdash, 2018 NY Slip Op 02287 [2018]). The issue of a plaintiff's comparative negligence is addressed and determined only when considering the damages that a defendant owes to a plaintiff (id. at 3). Thus, plaintiff's motion for summary judgment is appropriate regardless of plaintiff's potential comparative negligence.

Here, an Order dated December 18, 2017, by the Honorable Paul A. Goetz precluded defendant driver Nitai C. Sarker from testifying at trial or submitting an affidavit in support of a substantive motion. Further, defendant Doreen Express does not have personal knowledge of the incident, thus, their affidavit in opposition is insufficient to raise a genuine issue of triable fact (Zuckerman, 49 NY2d 560). Plaintiff submitted the sworn statement of Gail D. Patterson, a witness of the incident, who confirmed that defendant's taxi backed up into plaintiff with no warnings or sounds that it was backing up. Defendants' opposition solely and mistakenly hinges [*2]their argument on the issue of comparative negligence, which is not sufficient to defeat a motion for summary judgment. Thus, defendants have failed to raise a triable issue of fact and plaintiff's motion for summary judgment is granted as to defendants' liability; however, plaintiff's comparative fault is not decided herein and will remain open for the jury to determine at trial.

Accordingly, it is ORDERED that plaintiff's motion for summary judgment is granted only as to the issue of liability as against defendant Doreen Express Cab Corp and defendant Nitai C. Sarker; and it is further

ORDERED that within 30 days of entry, plaintiff shall serve a copy of this decision/order upon defendant with notice of entry.

This constitutes the Decision/Order of the Court.

May 10, 2018