Zhinminay v Cavus

Zhinminay v Cavus 2007 NY Slip Op 05431 [41 AD3d 289] June 21, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Franklin Zhinminay, Respondent,
v
Sener Cavus et al., Appellants.

—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for appellants.

Jaroslawicz & Jaros, New York (Robert Tolchin of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 16, 2007, which granted plaintiff's cross motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, the cross motion denied and the matter remanded for further proceedings.

The record on appeal does not allow for meaningful review of defendants' contention that plaintiff's cross motion was untimely.

Neither plaintiff nor defendant driver Ahmed gave clear testimony on precisely what happened immediately before the accident, instead offering equivocal recollections of the relevant events. Given the inconsistencies, lack of clarity and issues of credibility in the record (see Rodriguez v New York City Hous. Auth., 194 AD2d 460, 462 [1993]; American Realty Co. v 64 B Venture, 176 AD2d 226, 227 [1991], lv denied 79 NY2d 756 [1992]), the cause of the accident should be resolved on cross-examination before a factfinder, rather than on summary judgment (see Carlos v Rochester Gen. Hosp., 163 AD2d 894 [1990]).

Defendants' remaining contentions are academic in light of our determination. Concur—Andrias, J.P., Friedman, Sweeny, McGuire and Kavanagh, JJ.