Opinion
11-22-2016
Sebastian PANE, Plaintiff–Appellant, v. Pablo CISILINO, et al., Defendants–Respondents.
Barasch McGarry Salzman & Penson, New York (Dominique Penson of counsel), for appellant. Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondents.
Barasch McGarry Salzman & Penson, New York (Dominique Penson of counsel), for appellant.
Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondents.
MAZZARELLI, J.P., SWEENY, ANDRIAS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered March 1, 2016, which denied plaintiff's motion for summary judgment on the issue of liability with leave to renew upon the completion of discovery, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established his entitlement to judgment as a matter of law in this action for personal injuries sustained in a motor vehicle accident. Plaintiff submitted, inter alia, his affidavit averring that this was a one-car accident which occurred when defendant Cisilino lost control of the vehicle he was driving, and in which plaintiff was a passenger (see e.g. Al–Nashash v. Soutra Limousine Inc., 115 A.D.3d 534, 981 N.Y.S.2d 921 [1st Dept.2014] ; Mughal v. Rajput, 106 A.D.3d 886, 888, 965 N.Y.S.2d 545 [2d Dept.2013] ).
In opposition, defendants failed to raise an issue of fact. Cisilino's averment in his affidavit that he could not recall the accident does not constitute a nonnegligent explanation for the accident (see e.g. Soto–Maroquin v. Mellet, 63 A.D.3d 449, 450, 880 N.Y.S.2d 279 [1st Dept.2009] ). Furthermore, the mere hope that evidence sufficient to defeat the summary judgment motion may be uncovered during discovery is an insufficient basis upon which to deny the motion (see Guerrero v. Milla, 135 A.D.3d 635, 24 N.Y.S.3d 63 [1st Dept.2016] ).