Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant SBH Trucking, Inc. (hereafter SBH), filed on December 23, 2013, under motion sequence number six, for an order dismissing the complaint pursuant to CPLR 3212:

Notice of Motion

Affirmation of SBH's counsel

Exhibits A-V

Affirmation of plaintiff's counsel in opposition

Affidavit of Geordony Valme

Affidavit of Patricia Emilcar

Affidavit of Ronald Gedeon

Exhibits A-J

Reply Affirmation of SBH's counsel

Recitation in accordance with CPLR 2219 (a) of the papers considered on the joint notice of motion of defendants Jean Eddy Bazile, a/k/a Eddy Bazile and Bazile Entertainment (collectively, Bazile), West Indian American Day Carnival Association, Inc. (hereafter the Association), and Raul Tejada (hereafter Tejada), filed on December 26, 2013, under motion sequence number seven, for an order dismissing the complaint pursuant to CPLR 3212:

Notice of Motion

Affirmation of defense counsel

Exhibits A-J

Affirmation of plaintiff's counsel in opposition

Affidavit of Geordony Valme

Affidavit of Patricia Emilcar

Affidavit of Ronald Gedeon

Exhibits A-J

Plaintiff commenced this personal injury action (later consolidated) against (1) SBH as the tractor's owner;^[FN2] (2) Tejada as the tractor-trailer's driver; (3) Bazile as one of the parade promoters, which supplied a trailer (more particularly, a float with the music band "T-Vice") which the tractor was pulling at the time of the accident; and (4) the Association as the parade's organizer. SBH and Tejada impleaded Bazile and the Association for contribution and common-law indemnification. Tejada's third-party claims were later discontinued. After discovery was completed and a note of issue was filed, SBH separately, and Tejada, Bazile, and the Association jointly, moved for summary judgment dismissing plaintiff's complaint.

Four triable issues of material fact preclude summary judgment to SBH and Tejada. First, on the issue of negligence, Tejada's deposition testimony (at page 72:15-25) that he was driving straight on the roadway at the time of the accident is contradicted by the affidavit of a previously disclosed eyewitness (Mr. Geordony Valme), dated Dec. 9, 2013, that "the driver [Tejada] veered to the right towards and into the bike lane where the officer [plaintiff] was walking" (¶ 8). Second, on the issue of causation, plaintiff's deposition testimony that he was walking alongside the tractor-trailer at about an arm's length away from it at the time of the accident, is contradicted by (1) Tejada's deposition testimony that plaintiff was not a pedestrian but rode on the tractor-trailer's coupling (or platform) at the time of the accident,^[FN3] and (2) the FDNY Prehospital Care Report and the Kings County Hospital Center Adult Admission Note, both describing the accident as plaintiff's falling off either the tractor or the trailer.^[FN4] Third, on the issue of comparative negligence, plaintiff's cellular telephone records indicate that he may have been inattentive by talking or texting at the time of the accident.^[FN5] Fourth, the deposition testimony of the then-senior patrol officer (now sergeant) Charles Senat who was in the passenger seat in the tractor's cab at the time of the accident is conflicting as to whether he was instructing Tejada when and how to drive the tractor-trailer.^[FN6]

As the issues of witness credibility are not appropriately resolved in a motion for summary judgment (see Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]), and because a proponent of a summary judgment motion must establish his or its freedom from comparative [*2]fault as a matter of law (see Antaki v Mateo, 100 AD3d 579, 580 [2d Dept 2012]), the drastic remedy of summary judgment is not appropriate for Tejada and SBH (see Calandra v Marnell, 16 AD3d 1125, 1126 [4th Dept 2005]; Breen v Areiter, 13 AD2d 833, 834 [2d Dept 1961], lv to modify denied 13 AD2d 1018 [2d Dept 1961]; Zuckerman v Szabo, 158 NYS2d 856, 857 [County Ct, Schenectady County 1957]). Considering that the summary judgment record does not point to the negligence of one particular party without any fault or culpable conduct by the other party, the Court declines plaintiff's request to search the record and award him partial summary judgment on liability against Tejada and SBH (see Gammons v City of NY, 109 AD3d 189, 203 [2d Dept 2013]).

The Court also denies the summary judgment motion of Bazile and the Association, but does so for a different reason. "The prima facie showing that a defendant must affirmatively make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Perruzza v L & M Creations of NY, 114 AD3d 919, 920 [2d Dept 2014]). Here, plaintiff's complaint, as amplified by his bill of particulars, dated Oct. 27, 2011, alleges that these defendants were negligent by failing to adequately supervise the parade and by creating a dangerous condition, resulting in plaintiff's injuries. However, these defendants have not addressed, by competent proof, the issues of the parade supervision and the driving conditions at the time of the accident. Their counsel's affirmation, by merely pointing to gaps in plaintiff's proof, rather than affirmatively demonstrating the merit of their defense, failed to carry their burden on summary judgment (see Marielisa R. v Wolman Rink Operations, LLC, 94 AD3d 963, 964 [2d Dept 2012]). Accordingly, the summary judgment motions of Bazile and the Association are denied, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

SBH's motion for an order pursuant to CPLR 3212 granting summary judgment on in its favor on the issue of liability and dismissing the complaint is denied.

Bazile, the Association and Tejada's joint motion for an order pursuant to CPLR 3212 granting summary judgment in their favor on the issue of liability and dismissing the complaint is denied.

This foregoing constitutes the decision and order of the Court.

J.S.C.