Harrison v. Crescent Driving Sch. , 4 N.Y.S.3d 539 ( 2015 )

Harrison v Crescent Driving Sch. (2015 NY Slip Op 02731)

Harrison v Crescent Driving Sch.

2015 NY Slip Op 02731

Decided on April 1, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.

2014-04037
(Index No. 5581/12)

[*1]Chairese Harrison, appellant,

v

Crescent Driving School, et al., respondents.

Finz & Finz, P.C., Mineola, N.Y. (Joshua B. Sandberg of counsel), for appellant.

Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Daniel E. Furshpan of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Woodard, J.), entered April 4, 2014, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The plaintiff, who was employed by the Department of Motor Vehicles as a license examiner, allegedly sustained injuries while administering a road test. The plaintiff was sitting in the passenger seat of a vehicle operated by the defendant Neeha Bhalia, and owned by the defendant Crescent Driving School, when Bhalia attempted to make a right turn during the road test and allegedly struck a street sign pole near the intersection of 145th Street and 115th Avenue in Jamaica, Queens. The plaintiff commenced this action against the defendants, and the defendants moved for summary judgment dismissing the complaint arguing, inter alia, that the action was barred by the doctrine of assumption of the risk. The Supreme Court granted the motion. We reverse.

The defendants failed to establish, prima facie, that the action was barred by the doctrine of assumption of the risk. The fact that the plaintiff knowingly entered a vehicle operated by an unlicensed motorist merely raised a triable issue of fact as to her comparative negligence (see CPLR 1411; see generally Custodi v Town of Amherst, 20 NY3d 83; Kuebler v Kuebler, 90 AD3d 1611). Since the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law, it is unnecessary to consider the sufficiency of the plaintiff's papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

In light of our determination, it is not necessary to reach the merits of the parties' remaining contentions.

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.

BALKIN, J.P., ROMAN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court