Opinion
2012-01-31
Juan RODRIGUEZ, et al., appellants, v. RYDER TRUCK, INC., et al., respondents.
The Flomenhaft Law Firm, PLLC, New York, N.Y. (Benedene Cannata of counsel), for appellants. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner of counsel), for respondents.
The Flomenhaft Law Firm, PLLC, New York, N.Y. (Benedene Cannata of counsel), for appellants. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Eileen M. Baumgartner of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated December 15, 2010, which denied their motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is granted.
Contrary to the defendants' contentions, the unsigned but certified deposition of the plaintiff Juan Rodriguez, which was submitted in support of the plaintiffs' motion for summary judgment, was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent ( see Ashif v. Won Ok Lee, 57 A.D.3d 700, 868 N.Y.S.2d 906). Additionally, although the plaintiffs initially failed to submit the certification page of the deposition of the defendant Derrick Thomas, they submitted it on reply in response to the defendants' arguments in opposition. Under the circumstances of this case, the late submission did not prejudice the defendants, and the Supreme Court should have considered the certification ( see Mazzarelli v. 54 Plus Realty Corp., 54 A.D.3d 1008, 864 N.Y.S.2d 554; cf. Navarrete v. A & V Pasta Prods., Inc., 32 A.D.3d 1003, 1004, 821 N.Y.S.2d 268). Furthermore, although unsigned, as noted above, the transcript of Thomas's deposition was certified, and the defendants did not raise any challenges to its accuracy. Thus, it qualified as admissible evidence for purposes of the plaintiffs' motion for summary judgment ( see Zalot v. Zieba, 81 A.D.3d 935, 936, 917 N.Y.S.2d 285; Bennett v. Berger, 283 A.D.2d 374, 726 N.Y.S.2d 22; Zabari v. City of New York, 242 A.D.2d 15, 17, 672 N.Y.S.2d 332). However, the uncertified and unsworn police report submitted by the plaintiffs in support of their motion was inadmissible ( see Toussaint v. Ferrara Bros. Cement Mixer, 33 A.D.3d 991, 992, 823 N.Y.S.2d 223; Bates v. Yasin, 13 A.D.3d 474, 788 N.Y.S.2d 397; Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533).
The depositions submitted by the plaintiffs revealed that the vehicle driven by Thomas struck the vehicle driven by Rodriguez from the rear while it was stopped at a traffic light. This evidence was sufficient to establish the plaintiffs' prima facie entitlement to summary judgment on the issue of liability ( see Giangrasso v. Callahan, 87 A.D.3d 521, 522, 928 N.Y.S.2d 68). In opposition, the defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision ( see Stief v. URA, Inc., 89 A.D.3d 720, 931 N.Y.S.2d 904). Accordingly, the Supreme Court should have granted the plaintiffs' motion for summary judgment on the issue of liability.