Lee v Quallo, 2023 NY Slip Op 06520 [222 AD3d 858]
December 20, 2023
Appellate Division, Second Department
[*1]
Dlaja Lee, Appellant,
v
Kellian Quallo et al., Respondents, et al., Defendant.
Wingate, Russotti, Shapiro, Moses & Halperin, LLP, New York, NY (David M. Schwarz of counsel), for appellant.
Lydecker, Melville, NY (Michael R. Rawlinson and Ling Ding of counsel), for respondent Kellian Quallo.
James G. Bilello, Hicksville, NY (Alina Vengerov of counsel), for respondent Ebony McCain.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Debra Silber, J.), dated June 29, 2022. The order, insofar as appealed from, denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendants Kellian Quallo and Ebony McCain.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In December 2018, the plaintiff commenced this action against, among others, Ebony McCain and Kellian Quallo (hereinafter together the defendants) to recover damages for personal injuries she alleged she sustained in September 2017 when a vehicle in which she was a passenger, which was owned and operated by McCain, and a vehicle operated by Quallo collided at an intersection in Brooklyn controlled by stop signs in each driver’s direction. The plaintiff moved, among other things, for summary judgment on the issue of liability against the defendants. In an order dated June 29, 2022, the Supreme Court, inter alia, denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendants. The plaintiff appeals.
Although the right of a plaintiff to summary judgment on the issue of liability in a negligence action is not restricted by potential issues of comparative negligence which may exist as between the defendant drivers ( see Anzel v Pistorino , 105 AD3d 784 , 786 [2013]; Medina v Rodriguez , 92 AD3d 850 , 851 [2012]), a plaintiff still “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 plaintiff’s alleged injuries” ( Detoma v Dobson , 214 AD3d 948 , 949 [2023]). Moreover, although the parties do not dispute that the plaintiff here has no comparative fault, the plaintiff’s lack of comparative fault is not a consideration in determining whether the plaintiff has made a prima facie showing on the issue of the defendants’ liability ( see Rodriguez v City of New York , 31 NY3d 312 [2018]; Detoma v Dobson , 214 AD3d at 949). [*2] Here, the plaintiff’s submissions failed to establish negligence as a matter of law by either of the defendants. In support of her motion, the plaintiff submitted the transcripts of the deposition testimony of the defendants, which contained conflicting testimony as to whether McCain or Quallo had the right-of-way to proceed through the intersection ( see Detoma v Dobson , 214 AD3d at 949). Contrary to the plaintiff’s contention, the issue is more than the apportionment of fault between the defendants, since the trier of fact could find that one of them was not negligent in the happening of the accident ( see id. ; Phillip v D&D Carting Co., Inc. , 136 AD3d 18 , 25 [2015]).
Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the defendants. Duffy, J.P., Iannacci, Christopher and Voutsinas, JJ., concur..