Opinion
2013-12-3
Albana RUGOVA, as Administratrix of the Estate of Dardan Binakaj, deceased, Plaintiff–Respondent, v. Shawn D. DAVIS, Defendant–Appellant.
Thomas M. Bona, P.C., White Plains (Michael Flake of counsel), for appellant. Pollack, Pollack, Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Thomas M. Bona, P.C., White Plains (Michael Flake of counsel), for appellant. Pollack, Pollack, Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
ANDRIAS, J.P., ACOSTA, SAXE, RENWICK, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 5, 2012, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.
The motion court improvidently exercised its discretion by not considering defendant's reply papers, and we review them in determining the appeal ( seeCPLR 2004).
Defendant demonstrated his prima facie entitlement to judgment as a matter of law by showing that his car was struck in the rear by plaintiff's decedent's car, and in response, plaintiff failed to provide a nonnegligent explanation, in evidentiary form, for the collision ( see Avant v. Cepin Livery Corp., 74 A.D.3d 533, 904 N.Y.S.2d 381 [1st Dept.2010] ).
The transcripts of the deposition testimony of two police officers who testified in a related action are hearsay as to defendant, since he was not notified about this deposition, nor present for the testimony given by the officers ( seeCPLR 3117[a][3]; Rivera v. New York City Tr. Auth., 54 A.D.3d 545, 547, 863 N.Y.S.2d 201 [1st Dept.2008]; Weinberg v. City of New York, 3 A.D.3d 489, 770 N.Y.S.2d 431 [2nd Dept.2004]; Claypool v. City of New York, 267 A.D.2d 33, 699 N.Y.S.2d 363 [1st Dept.1999] ). Although the transcripts are hearsay, hearsay may be used to defeat summary judgment as long as it is not the only evidence submitted in opposition ( see O'Halloran v. City of New York, 78 A.D.3d 536, 911 N.Y.S.2d 333 [1st Dept.2010]; Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525, 899 N.Y.S.2d 46 [2010] ). However, plaintiff failed to raise a triable issue of fact, since she submitted no other admissible evidence as to the happening of the accident in opposition to defendant's motion for summary judgment.
Plaintiff may not avail herself of the Noseworthy doctrine (Noseworthy v. City of New York, 298 N.Y. 76, 80, 80 N.E.2d 744 [1948] ), so as not to be held to as high a degree of proof, since plaintiff failed to make a showing of facts from which negligence can be inferred ( see Melendez v. Parkchester Med. Servs., P.C., 76 A.D.3d 927, 908 N.Y.S.2d 33 [1st Dept.2010] ).