Caruana v. Fuhlbruck

—Order unanimously reversed on the law without costs, motion and cross motion denied and counterclaim reinstated. Memorandum: Supreme Court erred in granting the motion of plaintiffs seeking partial summary judgment on liability. Plaintiffs failed to present any proof regarding the proximate cause of plaintiff Maureen Caruana’s injuries and thus failed to meet their initial burden of establishing their entitlement to judgment on liability as a matter of law (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784; see also, Cullipher v Traffic Markings, 259 AD2d 991, 992; Baker v Sportservice Corp., 142 AD2d 991, 993). The court further erred in granting the cross motion of plaintiff Felix Caruana seeking summary judgment dismissing the counterclaim against him. Although he met his initial burden, defendant raised an issue of fact concerning his alleged negligence as the driver of the vehicle in which plaintiff Maureen Caruana was a passenger (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). (Appeal from Order of Supreme Court, Erie County, Whelan, J.— Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Wisner, Kehoe and Burns, JJ.