Opinion
15314 307557/13
06-04-2015
Miguel A. DE LOS SANTOS, Plaintiff–Appellant, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants–Respondents.
Subin Associates LLP, New York (Robert J. Eisen of counsel), for appellant. Lawrence Heisler, Brooklyn, for respondents.
Subin Associates LLP, New York (Robert J. Eisen of counsel), for appellant.
Lawrence Heisler, Brooklyn, for respondents.
TOM, J.P., SWEENY, MOSKOWITZ, DeGRASSE, RICHTER, JJ.
Opinion Order, Supreme Court, Bronx County (Barry Salman, J.), entered October 3, 2014, which granted defendants' motion to vacate a prior order granting plaintiff's motion for summary judgment on the issue of liability upon defendants' default, and, upon vacating the prior order, denied plaintiff's motion for summary judgment, unanimously affirmed, without costs.
Defendants provided a reasonable excuse for their failure to timely oppose plaintiff's summary judgment motion. Defendants submitted, inter alia, their attorney's affirmation explaining that she was trying another case during a three-week period when defendants' opposition to plaintiff's motion was due, and that defendant Ciprian, the driver of defendant Transit Authority's bus which collided with plaintiff's vehicle, was out on medical leave and unavailable to execute an affidavit in opposition (see Xiao Jia Lin v. Engleton, 121 A.D.3d 483, 993 N.Y.S.2d 493 [1st Dept.2014] ).
Ciprian's affidavit, in which he averred that the collision occurred when plaintiff's vehicle “came into [Ciprian's] lane of travel and struck the right passenger's side of the bus,” even though Ciprian “turned the steering wheel in an effort to avoid contact,” adequately set forth a meritorious defense on the issue of fault in causation of the accident. The affidavit also sufficed to raise questions of fact warranting denial of plaintiff's pre-discovery motion for partial summary judgment on the issue of liability (see Belziti v. Langford, 105 A.D.3d 649, 963 N.Y.S.2d 654 [1st Dept.2013] ).