Opinion
2014-04-17
Jose Jaime GARZON–VICTORIA, Plaintiff–Respondent, v. Michael C. OKOLO, et al., Defendants–Appellants.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Colin F. Morrissey of counsel), for appellants. Law Offices of Brad A. Kauffman, New York (David S. Zwerin of counsel), for respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Colin F. Morrissey of counsel), for appellants. Law Offices of Brad A. Kauffman, New York (David S. Zwerin of counsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 4, 2013, which granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.
Plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit stating that defendants' yellow cab struck him as he was crossing within a crosswalk, with the pedestrian light in his favor, and after he had looked for oncoming traffic ( see Cartagena v. Girandola, 104 A.D.3d 599, 960 N.Y.S.2d 901 [1st Dept.2013];Beamud v. Gray, 45 A.D.3d 257, 844 N.Y.S.2d 269 [1st Dept.2007] ).
In opposition, defendants failed to raise a triable issue of fact. Defendant driver Michael Okolo himself admits in his affidavit that both he and plaintiff spoke with the police. Because Okolo's statement constitutes an admission against interest, it is admissible ( see Penn v. Kirsh, 40 A.D.2d 814, 814, 338 N.Y.S.2d 161 [1st Dept.1972] ). Okolo's affidavit containing a different version of the facts appears to have been submitted to avoid the consequences of his prior admission to the police officer and, thus, is insufficient to defeat plaintiff's motion for partial summary judgment ( see Buchinger v. Jazz Leasing Corp., 95 A.D.3d 1053, 1053, 944 N.Y.S.2d 316 [2d Dept.2012];Abramov v. Miral Corp., 24 A.D.3d 397, 398, 805 N.Y.S.2d 119 [2d Dept.2005] ).
We have reviewed defendants' remaining contentions and find them unavailing. FRIEDMAN, J.P., SWEENY, ANDRIAS, GISCHE, CLARK, JJ., concur.