Yant v Mile Sq. Transp., Inc.

Yant v Mile Sq. Transp., Inc. 2011 NY Slip Op 07913 Decided on November 10, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 10, 2011
Tom, J.P., Andrias, Acosta, Freedman, Richter, JJ. 5961-
310098/08 5962

[*1]Michael E. Yant, Plaintiff-Respondent, ——

v

Mile Square Transportation, Inc., et al., Defendants-Appellants.




Mauro Lilling Naparty LLP, Great Neck (Jennifer B. Ettenger of
counsel), for appellants.
Hoberman & Trepp, P.C., Bronx (Adam F. Raclaw of counsel),
for respondent.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered April 14, 2010, which granted plaintiff's motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered on or about April 12, 2011, which, insofar as appealable, denied defendants' motion to renew, unanimously dismissed, without costs, as moot.

Plaintiff established his entitlement to judgment as a matter of law by stating that he was injured when defendants' school bus hit the rear of the bus on which he was riding (see Johnson v Phillips, 261 AD2d 269, 271 [1999]). In opposition, defendants raised a triable issue of fact by attaching the complete police accident report, which listed all of the passengers on the buses and did not include plaintiff's name. This document, which was admissible as a business record (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 [2003], lv dismissed in part, denied in part 100 NY2d 636 [2003]), raised the question of whether plaintiff was actually a passenger on the bus (see Perry v City of New York, 44 AD3d 311 [2007]). Accordingly, plaintiff's motion should have been denied and defendants should have been permitted to conduct discovery to determine whether or not plaintiff was indeed a passenger (see CPLR 3212[f]; Bartee v D & S Fire Protection Corp., 79 AD3d 508 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2011

CLERK