Opinion
06-21-2016
James CRUZ, Plaintiff–Respondent, v. Renwick B. SKERITT, et al., Defendants–Appellants.
Law Offices of John Trop, Yonkers (David Holmes of counsel), for appellants. Orin R. Kitzes, Flushing, for respondent.
Law Offices of John Trop, Yonkers (David Holmes of counsel), for appellants.
Orin R. Kitzes, Flushing, for respondent.
Opinion Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered June 23, 2015, which granted plaintiff's motion for summary judgment on the issues of liability and compliance with the threshold “serious injury” requirement of Insurance Law § 5102(d) and ordered a trial on damages, unanimously modified, on the law, to deny plaintiff's motion as premature with respect to the serious injury issue, and vacate the order regarding a damages trial, and otherwise affirmed, without costs.
Plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability. He submitted evidence showing that defendant driver made an illegal U-turn, in violation of Vehicle and Traffic Law § 1163(a), and collided with plaintiff's car within seconds and before plaintiff had any opportunity to avoid the collision (see Estate of Mirjani v. DeVito, 135 A.D.3d 616, 617–618, 24 N.Y.S.3d 263 [1st Dept.2016] ; Williams v. Simpson, 36 A.D.3d 507, 508, 829 N.Y.S.2d 51 [1st Dept.2007] ). Defendant driver's admission in the police accident report that he had made an illegal U-turn and had collided with plaintiff's car is admissible, since defendants also relied upon the report and waived any hearsay or authentication objection (see Matter of Government Empls. Ins. Co. v. Boohit, 122 A.D.3d 525, 525, 997 N.Y.S.2d 384 [1st Dept.2014] ).
Defendant driver's affidavit, to the extent he claimed that plaintiff struck his car after the turn was complete, was insufficient to defeat plaintiff's motion as to liability, because defendant does not articulate any way in which plaintiff was at fault. The grant of summary judgment on the serious injury issue was premature, since defendants had not had an opportunity to conduct any discovery concerning the extent or causation of the injuries (CPLR 3212[f] ; Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 103, 824 N.Y.S.2d 210 [1st Dept. 2006], lv. denied 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007] ). Since plaintiff placed his physical condition in issue, defendants have the right to examine him (see Cynthia B. v. New Rochelle Hosp. Med. Ctr., 60 N.Y.2d 452, 456–457, 470 N.Y.S.2d 122, 458 N.E.2d 363 [1983] ; CPLR 3101, 3121 ).
MAZZARELLI, J.P., ANDRIAS, SAXE, GISCHE, KAHN, JJ., concur.