Opinion
12079 Index No. 31895/17 Case No. 2019-4792
10-15-2020
Joanna PAULINO, as Mother and Natural Guardian of A.P., an Infant Under the Age of Fourteen, et al., Plaintiffs–Appellants, v. XING WU CHEN, et al., Defendants–Respondents.
Jaroslawicz & Jaros PLLC, New York (David Tolchin and Mariel Crippen of counsel), for appellants. Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondents.
Jaroslawicz & Jaros PLLC, New York (David Tolchin and Mariel Crippen of counsel), for appellants.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka of counsel), for respondents.
Friedman, J.P., Manzanet–Daniels, Kern, Moulton, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered May 29, 2019, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiffs' cross motion for summary judgment and to strike defendants' answer, unanimously modified, on the law, to deny defendants' motion and reinstate the complaint, and otherwise affirmed, without costs.
Defendants' motion for summary judgment should have been denied since the record presents differing versions as to how the accident occurred (see G.G.N. v. Ramos, 171 A.D.3d 619, 621, 98 N.Y.S.3d 183 [1st Dept. 2019] ; Martinez v. Clean Air Car Serv. & Parking Branch One, LLC, 148 A.D.3d 569, 48 N.Y.S.3d 600 [1st Dept. 2017] ). The testimony presented two different versions of how fast defendant was driving his vehicle, and different versions of whether infant plaintiff was visible in the roadway before the impact (see Sylvester v. Velez, 146 A.D.3d 599, 44 N.Y.S.3d 742 [1st Dept. 2017] ; Moreira v. Ramos, 95 A.D.3d 561, 944 N.Y.S.2d 87 [1st Dept. 2012] ; Vehicle and Traffic Law § 1146 ).
Given that neither party established their entitlement to summary judgment, plaintiff's cross motion to strike defendants' answer is no longer moot. Nevertheless, the cross motion should be denied on the ground that plaintiffs waived their right to the requested relief. The record shows that they filed their note of issue on October 31, 2018, but did not move to strike the answer until December 11, 2018, and do not claim that they reserved their rights or preserved their objections in the note of issue (see Rivera–Irby v. City of New York, 71 A.D.3d 482, 896 N.Y.S.2d 337 [1st Dept. 2010] ; Escourse v. City of New York, 27 A.D.3d 319, 812 N.Y.S.2d 478 [1st Dept. 2006] ).