WILLIAM F. MASTRO
Gana LLP, New York, N.Y. (Adam Gana and Daniel Gwertzman of counsel), for appellant. Rawle & Henderson, LLP, New York, N.Y. (Steven R. Montgomery and Benjamin J. Smith of counsel), for respondents.
WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Walker, J.), dated December 12, 2014, which denied his motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is granted.
On October 1, 2013, the plaintiff was walking in a crosswalk on the south side of the intersection of 17th Avenue and 84th Street in Brooklyn, when an ambulance maintained and controlled by the defendant Richmond County Ambulance Services and operated by the defendant Anthony Natale, allegedly struck him in the crosswalk as it made a left turn from 84th Street onto 17th Avenue.
In a personal injury action, to prevail on a motion for summary judgment on the issue of 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 ( see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690; Gorenkoff v. Nagar, 120 A.D.3d 470, 470, 990 N.Y.S.2d 604), since there can be more than one proximate cause of an accident ( see Lanigan v. Timmes, 111 A.D.3d 797, 798, 975 N.Y.S.2d 148; Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282). Where a plaintiff has established his or her 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 ( see Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 966 N.Y.S.2d 167; Sirot v. Troiano, 66 A.D.3d 763, 764, 886 N.Y.S.2d 504).
The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that, before entering the crosswalk at the southwest corner of 84th Street and 17th Avenue and during the course of crossing the street, he looked both ways for oncoming vehicles and that, as he was crossing 17th Avenue within the crosswalk, with the pedestrian control and traffic control devices in his favor, Natale failed to yield the right-of-way to him ( see Kusz v. New York City Tr. Auth., 88 A.D.3d 768, 930 N.Y.S.2d 892; Martinez v. Kreychmar, 84 A.D.3d 1037, 1038, 923 N.Y.S.2d 648; Lariviere v. New York City Tr. Auth., 82 A.D.3d 1165, 1166, 920 N.Y.S.2d 231; Qamar v. Kanarek, 82 A.D.3d 860, 861, 918 N.Y.S.2d 360; Klee v. America's Best Bottling Co., Inc., 60 A.D.3d 911, 875 N.Y.S.2d 270). The evidence submitted by the plaintiff demonstrated that Natale violated Vehicle and Traffic Law § 1111(a)(1) and that the plaintiff was not at comparative fault in the happening of the accident. In opposition, the defendants submitted Natale's affidavit, which contradicted his earlier deposition testimony, and merely raised what appear to be feigned issues of fact designed to avoid the consequences of his earlier deposition testimony. Thus, the affidavit failed to raise a triable issue of fact and was insufficient to defeat the plaintiff's motion ( see Viviano v. KeyCorp, 128 A.D.3d 811, 9 N.Y.S.3d 154; Bardales v. VAM Realty Corp., 124 A.D.3d 707, 998 N.Y.S.2d 650; Bluth v. Bias Yaakov Academy for Girls, 123 A.D.3d 866, 999 N.Y.S.2d 840; Rivera v. J. Nazzaro Partnership, L.P., 122 A.D.3d 826, 995 N.Y.S.2d 747; Capasso v. Capasso, 84 A.D.3d 997, 998, 923 N.Y.S.2d 199).
Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability.