Moscoso v. Upward Mobility Limousine, Inc.
Docket 2024-09057
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02400
- Docket
- 2024-09057
Appeal from an order denying the plaintiff's motion for summary judgment on liability and to dismiss the defendants' affirmative defenses alleging comparative negligence
Summary
The Appellate Division, Second Department affirmed the Supreme Court's denial of the plaintiff's motion for summary judgment on liability in a pedestrian-vehicle collision case. The plaintiff had sought a ruling that the driver was solely at fault and dismissal of the defendants' comparative negligence defense. The court held the plaintiff failed to meet her initial burden because her testimony did not eliminate triable issues about whether the driver could have seen her and whether she was at fault, so summary judgment was inappropriate.
Issues Decided
- Whether the plaintiff met her prima facie burden for summary judgment on liability in a pedestrian-vehicle collision case
- Whether the plaintiff eliminated triable issues of fact regarding the driver's ability to see her and take evasive action
- Whether the plaintiff's motion could also dismiss the defendants' affirmative defenses alleging comparative negligence
Court's Reasoning
The court applied the standard that a plaintiff moving for summary judgment must establish prima facie that the defendant breached a duty and that the breach proximately caused the injury. Although plaintiffs need not prove freedom from comparative fault for a prima facie case, a motion seeking dismissal of a comparative negligence defense must still eliminate triable issues about the plaintiff's own fault and the defendant's ability to avoid the accident. Here the plaintiff's deposition lacked specifics about her movements, timing, road conditions, and parking, so factual disputes remained about visibility and evasive opportunity, defeating summary judgment.
Authorities Cited
- Yentel v Lauer239 AD3d 1027
- Tsyganash v Auto Mall Fleet Mgt., Inc.163 AD3d 1033
- Rodriguez v City of New York31 NY3d 312
Parties
- Appellant
- Daysi Selena Moscoso
- Respondent
- Upward Mobility Limousine, Inc.
- Respondent
- Barry W. LeCount
- Judge
- Lara J. Genovesi, J.P.
- Judge
- Linda Christopher
- Judge
- Lillian Wan
- Judge
- Donna-Marie E. Golia
Key Dates
- Decision date
- 2026-04-22
- Supreme Court order date
- 2024-05-15
What You Should Do Next
- 1
Prepare for trial or further discovery
The plaintiff should obtain and present additional evidence about timing, sightlines, road conditions, and vehicle positioning to address the triable issues the court identified.
- 2
Consider additional motions
Either party may pursue targeted motions in limine or summary judgment on narrowed issues after further discovery to resolve specific factual disputes.
- 3
Consult appellate counsel about leave to appeal
If the plaintiff wishes to pursue further appellate review, she should consult counsel promptly about seeking leave to appeal to the New York Court of Appeals.
Frequently Asked Questions
- What did the court decide?
- The appeals court affirmed the lower court's denial of the plaintiff's motion for summary judgment on liability and to dismiss the defendants' comparative negligence defenses.
- Who is affected by this decision?
- The plaintiff (Moscoso) and the defendants (Upward Mobility Limousine, Inc. and driver Barry W. LeCount) are affected; the case will proceed without a liability determination on summary judgment.
- What does this mean for the trial?
- Because the motion was denied, factual disputes remain and the issues of liability and comparative negligence likely will be decided at trial or on further pretrial proceedings.
- Could the plaintiff have won on summary judgment?
- Yes, but only if she had presented evidence eliminating triable questions about visibility, timing, road conditions, and her own conduct; her deposition lacked those details.
- Can this decision be appealed further?
- The plaintiff could seek leave to appeal to the Court of Appeals, but further appellate review is discretionary and not guaranteed.
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Full Filing Text
Moscoso v Upward Mobility Limousine, Inc. - 2026 NY Slip Op 02400 Moscoso v Upward Mobility Limousine, Inc. 2026 NY Slip Op 02400 April 22, 2026 Appellate Division, Second Department Daysi Selena Moscoso, appellant, v Upward Mobility Limousine, Inc., et al., respondents. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 22, 2026 2024-09057, (Index No. 712512/20) Lara J. Genovesi, J.P. Linda Christopher Lillian Wan Donna-Marie E. Golia, JJ. Law Offices of Costas M. Eliades, P.C., New York, NY, for appellant. Nancy L. Isserlis (Zweig Law Firm P.C., Cedarhurst, NY [Jonah S. Zweig and Daniel Feldman], 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, Queens County (Ulysses B. Leverett, J.), dated May 15, 2024. The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence. ORDERED that the order is affirmed, with costs. The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained when the defendants' vehicle struck her as she walked toward the rear driver's side door of her vehicle. In December 2023, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence, contending that the defendant Barry W. LeCount (hereinafter the defendant driver) was solely at fault in the happening of the accident. The defendants opposed the motion. In an order dated May 15, 2024, the Supreme Court denied the plaintiff's motion. The plaintiff appeals. "'A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries'" ( Yentel v Lauer , 239 AD3d 1027, 1027, quoting Tsyganash v Auto Mall Fleet Mgt., Inc. , 163 AD3d 1033, 1033-1034; see Rodriguez v City of New York , 31 NY3d 312, 324-325). "A plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case" ( Tsyganash v Auto Mall Fleet Mgt., Inc. , 163 AD3d at 1034; see Rodriguez v City of New York , 31 NY3d at 324-325). "Nonetheless, the issue of a plaintiff's comparative negligence may be decided in the context of a motion for summary judgment where, as here, the plaintiff moves for summary judgment dismissing an affirmative defense alleging comparative negligence" ( Yentel v Lauer , 239 AD3d at 1027-1028; see Farooq v Uber USA, LLC , 235 AD3d 846, 846-847). Here, the plaintiff failed to meet her prima facie burden, as she failed to eliminate all triable issues of fact as to whether the defendant driver could have seen her prior to the accident and taken evasive action and whether she was at fault in the happening of the accident ( see Uhteg v Kendra , 200 AD3d 1695, 1698-1699; Fitch v Lee , 200 AD3d 651, 652; Garrido v Puente , 114 AD3d 722, 723). In support of her motion, the plaintiff submitted, inter alia, a transcript of her deposition testimony. The plaintiff testified that she stepped into the street from behind her vehicle, which was parked in the middle of a long block, that "[a]s soon as like [she] walked out . . . [she] was about to open the door and the car hit [her]," and that she did not see the defendants' vehicle prior to the impact. The plaintiff failed to provide any details as to how long she was at the rear driver's side door of her vehicle or as to how long it took her to reach the rear driver's side door of her vehicle. Nor did she offer any testimony describing the conditions of the subject roadway and the manner in which her vehicle was parked at the time of the accident. Since the plaintiff failed to meet her prima facie burden, we need not consider the sufficiency of the defendants' opposition papers ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853). Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence. In light of the foregoing, the parties' remaining contentions need not be reached. GENOVESI, J.P., CHRISTOPHER, WAN and GOLIA, JJ., concur. ENTER: Darrell M. Joseph