Villa v. Leandrou

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (McDonald, J.), dated June 2, 2011, which denied his motion for summary judgment on the issue of liability. Ordered that the order is affirmed, with costs. As properly determined by the Supreme Court, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The proof submitted by the plaintiff in support of his motion failed to establish, as a matter of law, that he was free from comparative negligence (see Roman v Al Limousine, Inc., 76 AD3d 552 [2010]; McFadden v Bruno, 37 AD3d 177 [2007]; Scibelli v Hopchick, 27 AD3d 720 [2006]; Wallace v Dubin, 20 AD3d 412 [2005]; Valore v McIntosh, 8 AD3d 662 [2004]; Eastmond v Wen Po Wong, 300 AD2d 344 [2002]). The failure to make such a showing requires the denial of the plaintiffs motion for summary judgment, regardless of the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the Supreme Court properly denied the plaintiffs motion for summary judgment on the issue of liability. Rivera, J.P., Chambers, Roman and Sgroi, JJ., concur. [Prior Case History: 31 Misc 3d 1237(A), 2011 NY Slip Op 5102KU).]