Hernandez defendant in New York

2014However, in opposition to the appellants’ prima facie showing, the Hernandez defendants raised a triable issue of fact as to whether the appellant driver may have been comparatively at fault in the occurrence of the accident (see Gray v Dembeck, 48 AD3d 748, 750 [2008]; DiSalvo v Hiller, 2 AD3d 1386, 1387 [2003]; Harris v Moyer, 255 AD2d 890, 891 [1998]).

2014However, in opposition to the appellants’ prima facie showing, the Hernandez defendants raised a triable issue of fact as to whether the appellant driver may have been comparatively at fault in the occurrence of the accident (see Gray v Dembeck, 48 AD3d 748, 750 [2008]; DiSalvo v Hiller, 2 AD3d 1386, 1387 [2003]; Harris v Moyer, 255 AD2d 890, 891 [1998]).

2014However, in opposition to the appellants’ prima facie showing, the Hernandez defendants raised a triable issue of fact as to whether the appellant driver may have been comparatively at fault in the occurrence of the accident (see Gray v Dembeck, 48 AD3d 748, 750 [2008]; DiSalvo v Hiller, 2 AD3d 1386, 1387 [2003]; Harris v Moyer, 255 AD2d 890, 891 [1998]).

2014However, in opposition to the appellants’ prima facie showing, the Hernandez defendants raised a triable issue of fact as to whether the appellant driver may have been comparatively at fault in the occurrence of the accident (see Gray v Dembeck, 48 AD3d 748, 750 [2008]; DiSalvo v Hiller, 2 AD3d 1386, 1387 [2003]; Harris v Moyer, 255 AD2d 890, 891 [1998]).

2014However, in opposition to the appellants’ prima facie showing, the Hernandez defendants raised a triable issue of fact as to whether the appellant driver may have been comparatively at fault in the occurrence of the accident (see Gray v Dembeck, 48 AD3d 748, 750 [2008]; DiSalvo v Hiller, 2 AD3d 1386, 1387 [2003]; Harris v Moyer, 255 AD2d 890, 891 [1998]).

2014However, in opposition to the appellants’ prima facie showing, the Hernandez defendants raised a triable issue of fact as to whether the appellant driver may have been comparatively at fault in the occurrence of the accident (see Gray v Dembeck, 48 AD3d 748, 750 [2008]; DiSalvo v Hiller, 2 AD3d 1386, 1387 [2003]; Harris v Moyer, 255 AD2d 890, 891 [1998]).

2025Additionally, the recantation evidence does not qualify as newly discovered evidence pursuant to CPL § 440.10(1)(g) because the issues raised in the affidavit and Hernandez's hearing testimony would merely impeach or contradict his own trial testimony, and the new evidence therefore is not "of such character as to create a probability that the verdict would have been more favorable to the [*6]defendant" had the evidence been introduced ( People v. Miles , 136 AD2d 958, 959 [1988], lv denied 71 NY2d 971 [1988]).

2023"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Boulos v Lerner-Harrington , 124 AD3d 709, 709 ; see Kirby v Lett , 208 AD3d 1174, 1175 ).

2023This evidence demonstrated, prima facie, that the driver of the sedan was the sole proximate cause of the accident and that the Hernandez defendants were not at fault ( see Kirby v Lett , 208 AD3d at 1175-1176 ).

2018Under these circumstances, we do not have the inherent authority to upset the plea ( see People v Moquin , 77 NY2d 449, 452-453 [1991]; Matter of Campbell v Pesce , 60 NY2d 165, 168-169 [1983]).

2018The question therefore distills to whether a writ of prohibition or writ of mandamus is warranted given that Hernandez's guilty plea has already been accepted, she was already sentenced by respondent to, among other things, a one-year conditional discharge period and such period expired in November 2017. "[T]he extraordinary remedy of prohibition is only available where a body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction and there is a clear legal right to such relief" ( Matter of Richards v Cuomo , 88 AD3d 1043, 1044 [2011] [internal quotatio

2018The question therefore distills to whether a writ of prohibition or writ of mandamus is warranted given that Hernandez's guilty plea has already been accepted, she was already sentenced by respondent to, among other things, a one-year conditional discharge period and such period expired in November 2017. "[T]he extraordinary remedy of prohibition is only available where a body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction and there is a clear legal right to such relief" ( Matter of Richards v Cuomo , 88 AD3d 1043, 1044 [2011] [internal quotatio

2018Under these circumstances, we do not have the inherent authority to upset the plea ( see People v Moquin , 77 NY2d 449, 452-453 [1991]; Matter of Campbell v Pesce , 60 NY2d 165, 168-169 [1983]).

2018To the extent that petitioner seeks a writ to prohibit respondent from accepting Hernandez's plea of guilty, such request is moot given that respondent has already accepted the plea and imposed a sentence thereon and the sentence expired in November 2017 ( see generally People v Cosme , 80 NY2d 790, 792 [1992]).