Opinion
06-04-2015
Adwoa GYABAAH, Plaintiff–Respondent, v. RIVLAB TRANSPORTATION CORP., et al., Defendants–Appellants.
Perry, Van Etten, Rozanski & Primavera, LLP, Melville (Elizabeth Gelfand Kastner of counsel), for appellants. Law Offices of Kenneth A. Wilhelm, New York (Barry Liebman of counsel), for respondent.
Perry, Van Etten, Rozanski & Primavera, LLP, Melville (Elizabeth Gelfand Kastner of counsel), for appellants.
Law Offices of Kenneth A. Wilhelm, New York (Barry Liebman of counsel), for respondent.
Opinion Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered July 31, 2014, which granted plaintiff's motion for summary judgment on the issue of liability, unanimously affirmed, without costs.
Plaintiff made a prima facie showing of her entitlement to judgment as a matter of law on the issue of liability by submitting her affidavit stating that the yellow school bus owned by defendant Rivlab Transportation Corp. struck her and ran over her foot, as she was crossing within a crosswalk, with the pedestrian light in her favor, and after she had looked for oncoming traffic (see Garzon–Victoria v. Okolo, 116 A.D.3d 558, 558, 983 N.Y.S.2d 718 [1st Dept.2014] ). Defendants' contention that plaintiff did not provide evidence to establish that defendant Littlejohn was the driver of the bus is raised for the first time on appeal and therefore is not preserved for our review (see Diarrassouba v. Consolidated Edison Co. of N.Y. Inc., 123 A.D.3d 525, 999 N.Y.S.2d 33 [1st Dept.2014] ).
In opposition, defendants failed to raise a triable issue of fact, since they submitted only an affirmation from an attorney without personal knowledge of the facts (see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Nor was defendants' answer, verified by an attorney without personal knowledge of the facts, sufficient to raise an issue of fact (see JPMorgan Chase Bank, N.A. v. Clancy, 117 A.D.3d 472, 985 N.Y.S.2d 507 [1st Dept.2014] ). Defendants' speculation that plaintiff may have been comparatively negligent does not raise a triable issue of fact (see Coutu
v. Santo Domingo, 123 A.D.3d 410, 410, 998 N.Y.S.2d 40 [1st Dept.2014], lv. dismissed 24 N.Y.3d 1214, 2015 WL 753314 [2015] ). Although plaintiff's motion was filed before discovery, defendants failed to explain what discovery was needed to oppose the motion (see Santana v. Danco Inc., 115 A.D.3d 560, 982 N.Y.S.2d 455 [1st Dept.2014] ; see also CPLR 3212[f] ), and they did not serve discovery demands during the years the action was pending (see Patino v. Drexler, 116 A.D.3d 534, 534, 984 N.Y.S.2d 38 [1st Dept.2014] ).
TOM, J.P., SWEENY, MOSKOWITZ, DeGRASSE, RICHTER, JJ., concur.