Medina v. Rodriguez

• Decision Date: 21 February 2012
• Citation: 939 N.Y.S.2d 514,2012 N.Y. Slip Op. 01438,92 A.D.3d 850
• Parties: Luis MEDINA, respondent, v. Leonidas RODRIGUEZ, et al., appellants,Jane Jongjin Bae, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01438
92 A.D.3d 850
939 N.Y.S.2d 514

Luis MEDINA, respondent,
v.
Leonidas RODRIGUEZ, et al., appellants,Jane Jongjin Bae, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 21, 2012.

[939 N.Y.S.2d 514]

Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.

Souren A. Israelyan, New York, N.Y, for respondent.

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

[92 A.D.3d 850] In an action to recover damages for personal injuries, the defendants Leonidas Rodriguez and L & N Car Service appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated November 12, 2010, as granted that branch of the plaintiff's motion which was, in effect, for summary judgment against them on the issue

[939 N.Y.S.2d 515]

of whether he was at fault in the happening of the accident.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff was a rear seat passenger in a livery taxicab operated by the defendant Leonidas Rodriguez and owned by the defendant L & N Car Service (hereinafter together the appellants) when the taxicab was involved in a collision with a vehicle operated by the defendant Jane Jongjin Bae and owned by the defendant Sang Moon Bae. The plaintiff commenced this action to recover damages for personal injuries, and moved, in effect, for summary judgment on the issue of whether he was at fault in the happening of the accident.

The Supreme Court properly granted that branch of the plaintiff's motion which was, in effect, for summary judgment against the appellants on the issue of whether the plaintiff was at fault in the happening of the accident. The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers ( see CLPR 3212[g]; Garcia v. Tri–County Ambulette Serv., 282 A.D.2d 206, 207, 723 N.Y.S.2d 163; Johnson v. Phillips, 261 A.D.2d 269, 272, 690 N.Y.S.2d 545; Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 833–834, 486 N.Y.S.2d 357; see also [92 A.D.3d 851] Conigliaro v. Premier Poultry, Inc., 67 A.D.3d 954, 955, 888 N.Y.S.2d 779). The plaintiff made a prima facie showing that he did not engage in any culpable conduct that contributed to the happening of the...