Opinion
2007-1462 K C.
Decided October 30, 2008.
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered February 20, 2007. The judgment, entered pursuant to an order which granted defendant's motion pursuant to CPLR 4401 for judgment as a matter of law, dismissed the complaint.
Judgment reversed without costs, order granting defendant's motion pursuant to CPLR 4401 for judgment as a matter of law vacated, defendant's motion denied and matter remanded to the court below for a new trial.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
Plaintiff commenced the instant action to recover for personal injuries and property damage stemming from a motor vehicle accident. At trial, plaintiff testified that while he was driving along Church Avenue at the intersection of 59th St. in Brooklyn, another vehicle tried to pass him on the right side and hit the rear right side bumper of his vehicle. Plaintiff did not identify defendant as the driver of the other vehicle nor did he describe in detail defendant's vehicle. After both sides rested, defendant moved, pursuant to CPLR 4401, for judgment dismissing the complaint on the ground that plaintiff had not made out a prima facie case, and the court granted his motion. The instant appeal by plaintiff ensued.
While plaintiff did not identify defendant in court as the driver of the other vehicle and did not describe in detail defendant's vehicle, defendant failed to deny the allegations contained in paragraphs numbered 5 through 9 of plaintiff's complaint, which alleged, inter alia, that defendant owned a 1987 Ford vehicle with registration number T238186C and that said vehicle was operated by defendant on May 28, 1999 when it came into contact with the vehicle operated by plaintiff at or near the intersection of Church Avenue and 59th Street in Brooklyn, New York. As a result, defendant is deemed to have admitted said allegations ( see CPLR 3018 [a]; Human Dev. Servs. of Port Chester v Zoning Bd. of Appeals of Vil. of Port Chester, 67 NY2d 702; Maplewood, Inc. v Wood, 21 AD3d 933; Santiago v County of Suffolk, 280 AD2d 594). We note that admissions, including the aforementioned admissions made by defendant, are always in evidence for all purposes at the trial ( see Holmes v Jones, 121 NY 461; Hayes v Henault, 131 AD2d 930; Braun v Ahmed, 127 AD2d 418; Walling v Commercial Advertiser Assn., 173 App Div 491).
We are of the opinion that plaintiff's testimony, together with the aforementioned admissions, established plaintiff's prima facie case. Accordingly, the judgment is reversed, the order granting defendant's motion pursuant to CPLR 4401 for judgment as a matter of law is vacated, defendant's motion is denied and the matter is remanded for a new trial.
Golia, J.P., Rios and Steinhardt, JJ., concur.