Miano v. 1-9 Seafood Plaza, Inc.

The evidence submitted by the appellants failed to eliminate all issues of fact as to whether the appellant driver used reasonable care to avoid the subject motor vehicle collision (see Rotondi v Rao, 49 AD3d 520, 521 [2008]; Cox v Nunez, 23 AD3d 427, 427-428 [2005]) and whether his failure to observe that which should have been observed was a proximate cause of the accident (see Judice v DeAngelo, 272 AD2d 583 [2000]). Therefore, the evidence submitted by the appellants in support of their motion failed to establish their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Under these circumstances, it is not necessary to consider the sufficiency of the opposition papers submitted by the plaintiffs (id. at 324). Spolzino, J.P, Covello, Angiolillo and Chambers, JJ., concur.