Opinion
5375 Index 302298/14
01-04-2018
Victor Manuel SANTIAGO, Plaintiff–Respondent, v. PIONEER TRANSPORTATION CORP., et al., Defendants–Appellants.
Silverman Shin & Byrne PLLC, New York (Wayne S. Stanton for counsel), for appellants. Law Offices of Ariel Aminov, PLLC, Islip (Ariel Aminov of counsel), for respondent.
Silverman Shin & Byrne PLLC, New York (Wayne S. Stanton for counsel), for appellants.
Law Offices of Ariel Aminov, PLLC, Islip (Ariel Aminov of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Gische, Kahn, Singh, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered March 4, 2016, which, inter alia, granted plaintiff's motion for summary judgment as to liability, unanimously reversed, on the law, without costs, and the motion denied.
On January 21, 2014, a school bus owned and operated by defendants collided with the rear of a truck plaintiff claimed, by affidavit, that he was driving. In contrast, the defendant bus driver averred that plaintiff was not the truck driver based on his observance of that driver's appearance, which contrasted with photographs of plaintiff, which defendant viewed. Thus, the court erred in granting plaintiff's motion for summary judgment because, " ‘viewed in the light most favorable to the non-moving party,’ " defendants raised an issue of fact as to the identity of the other driver (
Vega v. Restani Cost. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ). "[W]hether a particular defendant owes a duty to a particular plaintiff is a question of fact" for the jury ( Kimmell v. Schaefer, 89 N.Y.2d 257, 263, 652 N.Y.S.2d 715, 675 N.E.2d 450 [1996] ). The bus driver's affidavit was not impermissibly self-serving as having contradicted any of his prior testimony (cf. Caraballo v. Kingsbridge Apt. Corp., 59 A.D.3d 270, 873 N.Y.S.2d 299 [1st Dept. 2009] ). It is for the jury to resolve issues of credibility as between the conflicting affidavits of the parties concerning the identity of the truck driver (see Ocean v. Hossain, 127 A.D.3d 402, 403, 7 N.Y.S.3d 73 [1st Dept. 2015] ; Agli v. Turner Constr. Co., 237 A.D.2d 173, 174, 655 N.Y.S.2d 365 [1st Dept. 1997] ).