Opinion
2018–05947 Index No. 702386/17
03-06-2019
Valerie ADAM, Respondent, v. Glenn CATANIA, et al., Appellants.
Callahan & Fusco, LLC, New York, N.Y. (Christian W. Hambleton of counsel), for appellants. Ogen & Sedaghati, P.C., New York, N.Y. (Eitan Alexander Ogen of counsel), for respondent.
Callahan & Fusco, LLC, New York, N.Y. (Christian W. Hambleton of counsel), for appellants.
Ogen & Sedaghati, P.C., New York, N.Y. (Eitan Alexander Ogen of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
The plaintiff alleges that on September 1, 2015, as she was driving, her vehicle was struck in the rear by a vehicle owned by the defendant Wheels LT and operated by the defendant Glenn Catania. The plaintiff commenced this action against the defendants to recover damages for personal injuries. Prior to discovery being completed, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the plaintiff's motion, and the defendants appeal.
Contrary to the defendants' contention, the plaintiff's motion was not premature (see CPLR 3212[f] ; Lopez v. Dobbins , 164 A.D.3d 776, 79 N.Y.S.3d 566 ; Brown v. City of New York , 162 A.D.3d 733, 79 N.Y.S.3d 255 ; Lynn v. McCormick , 153 A.D.3d 688, 689, 60 N.Y.S.3d 316 ). However, we disagree with the Supreme Court's determination to grant the plaintiff's motion for summary judgment on the issue of liability.
The plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the issue of liability through her affidavit. The plaintiff's averments in the affidavit demonstrated, prima facie, that the defendant driver was negligent in striking her vehicle in the rear (see Rodriguez v. City of New York , 31 N.Y.3d 312, 101 N.E.3d 366 ; Arslan v. Costello , 164 A.D.3d 1408, 84 N.Y.S.3d 229 ; Lopez v. Dobbins , 164 A.D.3d 776, 79 N.Y.S.3d 566 ). In opposition, however, the defendants, who submitted a certified copy of a police accident report regarding the subject accident, raised a triable issue of fact as to how the accident occurred and whether the defendants were negligent (see Pilgrim v. Vishwanathan , 151 A.D.3d 769, 771, 56 N.Y.S.3d 268 ; see generally Pyo v. Tribino , 141 A.D.3d 639, 640, 34 N.Y.S.3d 904 ; Drakh v. Levin , 123 A.D.3d 1084, 1085, 1 N.Y.S.3d 202 ; Menelas v. Yearwood–Bobb , 100 A.D.3d 603, 605, 953 N.Y.S.2d 286 ; Klopchin v. Masri , 45 A.D.3d 737, 738, 846 N.Y.S.2d 311 ).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.
MASTRO, J.P., COHEN, MALTESE and LASALLE, JJ., concur.