Opinion
No. 2024-00315 Index No. 710195/22
11-27-2024
Joseph F. Felle, respondent, v. Deborah Maxaner, appellant.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant. Holihan & Associates, P.C., Richmond Hill, NY (Stephen Holihan and Justin Hoitsma of counsel), for respondent.
Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for appellant.
Holihan & Associates, P.C., Richmond Hill, NY (Stephen Holihan and Justin Hoitsma of counsel), for respondent.
MARK C. DILLON, J.P. BARRY E. WARHIT LILLIAN WAN DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER
In an action to recover damages for injury to property, the defendant appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered December 20, 2023. The order granted the plaintiff's motion for summary judgment on the issue of liability.
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 commenced this action to recover damages for injury to property allegedly sustained when the defendant's vehicle struck a brick wall and fence located on the plaintiff's property. The plaintiff moved for summary judgment on the issue of liability. In an order entered December 20, 2023, the Supreme Court granted the motion. The defendant appeals.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033-1034; see Rodriguez v City of New York, 31 N.Y.3d 312). "'A conclusory affidavit or an affidavit by an individual without personal knowledge of the facts does not establish the proponent's prima facie burden' on a motion for summary judgment" (Beauvoir v Samuel, 204 A.D.3d 741, 742, quoting JMD Holding Corp. v Congress Fin. Corp., 4 N.Y.3d 373, 384-385; see Yan Ping Xu v Van Zwienen, 212 A.D.3d 872, 873-874).
Here, the plaintiff's conclusory affidavit, which failed to set forth whether he had firsthand knowledge of the event, was insufficient to establish, prima facie, that a vehicle operated by the defendant struck a brick wall and fence located on the plaintiff's property (see Zeldin v Larose, 223 A.D.3d 858; Beauvoir v Samuel, 204 A.D.3d at 742). The uncertified police accident report submitted in support of the plaintiff's motion was not admissible (see Zeldin v Larose, 223 A.D.3d at 859; Yassin v Blackman, 188 A.D.3d 62, 65).
Since the plaintiff failed to meet his initial burden as the movant, the Supreme Court should have denied his motion for summary judgment on the issue of liability without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med, Ctr., 64 N.Y.2d 851, 853).
The defendant's remaining contention is without merit.
Accordingly, we reverse the order and deny the plaintiff's motion for summary judgment on the issue of liability.
DILLON, J.P., WARHIT, WAN and GOLIA, JJ., concur.