Practice point: The Appellate Division reversed the motion court and determined that plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk and while crossing the street, he looked both ways for oncoming vehicles and that, with the pedestrian control and traffic control devices in his favor, defendant failed to yield the right-of-way. Plaintiff's evidence demonstrated that defendant violated Vehicle and Traffic Law § 1111(a)(1) and that plaintiff was not at comparative fault in the happening of the accident. In opposition, the defendants submitted an affidavit which contradicted earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of the earlier testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat plaintiff's motion.
Student note: In a personal injury action, to prevail on a motion for summary
judgment on liability, a plaintiff has the burden of
establishing, prima facie, not only that the defendant was negligent,
but that the plaintiff was free from comparative fault, as there can be more than one proximate cause of an accident. Where a plaintiff has established prima facie
entitlement to judgment as a matter of law, the opposing party may
defeat the motion by submitting sufficient evidence to raise a triable
issue of fact as to the plaintiff's comparative fault.
Case: Zhu v. Natale, NY Slip Op 06586 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: At-will employment, termination, and fraudulent inducement claims.