Practice point: To prevail on a motion for summary judgment on the issue of
liability, a plaintiff has the burden of establishing, prima facie, not
only that the defendant was negligent but that the plaintiff was free
from comparative fault. Where the movant has established his or her entitlement to
judgment as a matter of law, the opposing party may defeat the motion
for summary judgment by submitting sufficient evidence to raise a
triable issue of fact as to the moving party's comparative fault.
Student note: A driver is bound to see what is there to be seen
through the proper use of his or her senses and is negligent for failure
to do so. A driver also has a duty to exercise reasonable care under the circumstances to avoid an accident.
Case: Lu Yuan Yang v. Howsal Cab Corp., NY Slip Op 03819 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Lack of service as the basis for a motion to vacate a judgment.
