Practice point: To prevail on the motion, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault. Here, plaintiff submitted his attorney's affirmation, a copy of the pleadings, and his own affidavit, which consisted of a conclusory one-paragraph description of the accident. The Appellate Division affirmed the Supreme Court's finding that plaintiff did not establish his prima facie entitlement to judgment as a matter of law, as his affidavit did not sufficiently demonstrate how the accident occurred and failed to eliminate triable issues as to which party or parties were at fault.
Student note: As plaintiff failed to meet his initial burden, the motion was denied without regard to the sufficiency of defendants' opposition papers.
Case: Derieux v. Apollo N.Y. City Ambulette, Inc., NY Slip Op 06490 (2d Dept. 2015)
Here is the decision.
Monday's issue: Dismissal of a legal malpractice claim.
