Shuman v. Maller

In related actions, inter alia, to recover damages for personal injuries, which were joined for trial, Karen Mailer and Paul Mailer, defendants in both actions, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated June 21, 2006, as granted those branches of the motions of William Coats, a defendant in action No. 1 and the plaintiff in action No. 2, which were for summary judgment dismissing the complaint and the cross claims insofar as asserted by them against him in action No. 1 and for summary judgment on the issue of liability against them in action No. 2, and granted that branch of the cross motion of Laura Shuman, the plaintiff in action No. 1, which was for summary judgment on the issue of liability against them in action No. 1, and Mercedes-Benz Credit Corporation, a defendant in both actions, separately appeals from so much of the same order as granted those branches of the motions of William Coats which were for summary judgment dismissing the complaint and the cross claims insofar as asserted by it against him in action No. 1 and for summary judgment on the issue of liability against it in action No. 2, and granted that branch of the cross motion of Laura Shuman which was for summary judgment on the issue of liability against it in action No. 1. Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs. These related personal injury actions arise from an accident involving a motorcycle driven by William Coats, a defendant in action No. 1 and the plaintiff in action No. 2, and a Mercedes-Benz motor vehicle driven by the defendant Karen Mailer and leased to the defendant Paul Mailer by the defendant Mercedes-Benz Credit Corporation (hereinafter collectively the appellants). Laura Shuman, the plaintiff in action No. 1, was a passenger on Coats’ motorcycle at the time of the accident. Coats 567 moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him in action No. 1 and he separately moved for summary judgment on the issue of liability in action No. 2. Shuman cross-moved, inter alia, for summary judgment on the issue of liability against the appellants in action No. 1. In the order appealed from, the Supreme Court, inter alia, granted the motions and cross motion. We affirm insofar as appealed from. In support of his motions for summary judgment, Coats established, prima facie, that he was lawfully proceeding southbound on the Robert Moses Causeway at the time of the accident. Both Coats and Shuman further established, prima facie, that the defendant Karen Mailer entered Coats’ traffic lane with her vehicle, without yielding the right of way, and hit his motorcycle (see Bongiovi v Hoffman, 18 AD3d 686, 687 [2005]; Moreback v Mesquita, 17 AD3d 420, 421 [2005]; cf. Jacino v Sugerman, 10 AD3d 593, 595 [2004]). The evidence submitted in opposition failed to raise a triable question of fact as to the comparative negligence of Coats (see McCain v Larosa, 41 AD3d 792 [2007]; Bongiovi v Hoffman, 18 AD3d at 686). Accordingly, the Supreme Court properly granted Coats’ motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him in action No. 1, properly granted Coats’ separate motion for summary judgment on the issue of liability in action No. 2, and properly granted those branches of Shuman’s cross motion which were for summary judgment on the issue of liability against the appellants in action No. 1. Rivera, J.P., Skelos, Fisher and Angiolillo, JJ., concur.