Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, NY (April Adell, Karen H. Tommer, and Patrick J. Lawless of counsel), for appellants.

Wingate, Russotti, Shapiro, Moses & Halperin, LLP (Chirico Law PLLC, Brooklyn, NY [Vincent Chirico], of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated September 20, 2021. The order granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence and culpable conduct on the part of the plaintiff, and to set a trial on the issue of damages.

Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence and culpable conduct on the part of the plaintiff, and to set a trial on the issue of damages is denied.

In December 2019, the plaintiff commenced this personal injury action against the defendants to recover damages for personal injuries he alleged he sustained in June 2019 when a vehicle operated by the defendant Andres Martinez and owned by the defendant Brink's Incorporated collided with a vehicle driven by the plaintiff. The plaintiff moved for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence and culpable conduct on the part of the plaintiff, and to set a trial on the issue of damages. In an order dated September 20, 2021, the Supreme Court granted the plaintiff's motion. The defendants appeal.

With respect to the plaintiff's motion, "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" (Poon v Nisanov, 162 AD3d 804, 807 [2018]; see Rodriguez v City of New York, 31 NY3d 312, 319 [2018]). "To be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 NY3d at 324-325).

Here, in support of his motion, the plaintiff submitted, inter alia, a transcript of his [*2]deposition testimony as well as the transcript of the deposition testimony of the defendant driver. The parties' deposition testimony about the happening of the accident conflicted, raising issues of credibility, and revealed factual disputes as to how and why the accident occurred. Since the plaintiff's submissions failed to eliminate all triable issues of fact as to whether the defendant driver was negligent in the happening of the accident, and, if so, whether any such negligence caused or contributed to the accident (see Flores v Rubenstein, 175 AD3d 1490, 1491 [2019]; Poon v Nisanov, 162 AD3d at 808), the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The Supreme Court also should have denied that branch of the plaintiff's motion which was for summary judgment dismissing the defendants' affirmative defenses alleging comparative negligence and culpable conduct on the part of the plaintiff. Where a plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence, the plaintiff must establish, prima facie, freedom from comparative fault (see Poon v Nisanov, 162 AD3d at 808; see also Ramirez v Wangdu, 195 AD3d 646, 647 [2021]). Here, the plaintiff failed to meet his prima facie burden on this issue (see Ramirez v Wangdu, 195 AD3d at 647).

Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defenses alleging comparative negligence and culpable conduct on the part of the plaintiff, without regard to the sufficiency of the defendants' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Duffy, J.P., Chambers, Wooten and Dowling, JJ., concur.