Opinion
Index No. 55773/2020 Motion Seq. 1
03-25-2021
MATILDE LEVANO, Plaintiff, v. GIOVANNA TALIO, Defendant.
Unpublished Opinion
DECISION & ORDER
HAN. JAMES W. HUBERT, SUPREME COURT JUSTICE
The following documents were read on this motion by Plaintiff Matilde Levano for an order granting summary judgment on the issue of liability as against Defendant Giovanna Talio:
Notice of Motion - Affirmation in Support - Exhibits 1 -3 - Affidavit in Support
Affidavit of Service
Affirmation in Opposition
Affirmation in Reply - Affidavit of Service
Upon consideration of the foregoing, and for the following reasons, Plaintiff's motion is granted.
The above-captioned action was commenced by the filing of a Summons and Verified Complaint by Plaintiff's counsel via the New York State Courts E-filing system ("NYSCEF") on June 4, 2020. In the Complaint, Plaintiff alleges that on or about April 23, 2019, at approximately 9:07 a.m., while working at the Valhalla Garden Center parking lot ("Garden Center") at 600 Columbus Avenue, Valhalla, New York, a car driven by Defendant hit a fence, canopy and wooden tables, resulting in one of the tables striking Plaintiff and causing Plaintiff to be seriously injured.
Defendant filed an Verified Answer via NYSCEF on June 26, 2020, which plead general denials and four affirmative defenses. Plaintiff filed the instant motion via NYSCEF on August 14, 2020. Defendant filed opposition papers via NYSCEF on September 4, 2020, to which Plaintiff filed a Reply on that same date.
In order to prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v Prospect Hosp. 68 N.Y.2d 320 (1986). "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." Tejada v Cedeno, 173 A.D.3d 808 (2d Dept. 2019).
In an affidavit in support of the instant motion, Plaintiff states that when the accident took place, she was working in the parking lot of the Garden Center when the vehicle being driven by the Defendant in the Garden Center, suddenly accelerated and hit a fence, canopy and several wooden tables. Plaintiff further states that after the Defendant's vehicle struck the tables, one of the tables hit her, resulting in her being seriously injured.
Plaintiff has also submitted a certified copy of a police accident report. According to the report, Defendant told the police that she was entering a parked position at 601 Columbus Avenue, when she mistook the gas from the brake and accelerated into the Garden Center canopy striking a chain link fence, wooden column and several wooden tables of flowers. The report further states that Plaintiff told the police she was an employee of 601 Columbus Avenue and was working in the area of the accident when she was struck by a wooden table.
Plaintiff has established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit, which established she was injured after Defendant's vehicle accelerated into the Garden Center canopy. The police accident report, which contains the Defendant's party admission, further establishes Defendant's culpability in the happening of the accident. See, Brown v. URS Midwest, Inc. 132 A.D.3d 936 (2d Dept. 2015) (driver's statement in police report was admissible as an admission as it "tended to inculpate the defendant in connection with a material fact"); see also, Yassin v Blackman, 188 A.D.3d 62 (2d Dept. 2020)(party's admission, contained in a certified police accident report, constitutes admissible evidence on the issue of liability).
In opposition to Plaintiff's prima facie showing, Defendant has not raised any triable issues of fact as to the happening of the accident. Defendant has submitted an attorney affirmation only. As a general matter, an affirmation of an attorney who has no personal knowledge of the facts is insufficient proof to successfully oppose a motion for summary judgment. GTF Marketing, Inc. v Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985). The only argument proffered by Defendant's attorney in her opposition papers is that the motion is premature. However, as noted by Plaintiff, Defendant has failed to demonstrate that discovery might lead to relevant evidence or that any facts essential to oppose the motion are in Plaintiff's exclusive knowledge and control Romain v City of New York, 111 A.D.3d 590 (2d Dept. 2019).
Accordingly, it is hereby:
ORDERED, that Plaintiff's motion for an Order granting summary judgment as against Defendant on the issue of liability is granted; and it is further
ORDERED, that an inquest for an assessment of damages is directed and shall be scheduled by the Settlement Conference Part in accordance with existing COVID protocols; and it is further
ORDERED that Plaintiff shall serve a copy of this Decision & Order with notice of entry upon Defendant within twenty days of the date that this Order is uploaded onto the NYSCEF system.
The foregoing constitutes the Decision & Order of the Court.