Javier v Audette

Javier v Audette 2012 NY Slip Op 02603 Decided on April 10, 2012 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 April 10, 2012
Andrias, J.P., Friedman, Acosta, Freedman, Richter, JJ. 7318-
14836/07 7318A

[*1]Maria Josefa Javier, etc., Plaintiff-Respondent-Appellant,

v

Henry Audette, et al., Defendants-Appellants-Respondents, Richard A. Milko, Jr., et al., Defendants-Respondents.




Martin, Fallon & Mullé, Huntington (Michael Jones of
counsel), for appellants-respondents.
Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel),
for respondent-appellant.
Faust Goetz Schenker & Blee, LLP, New York (Peter Kreymer
of counsel), for respondents.

Orders, Supreme Court, Bronx County (John A. Barone, J.), entered September 19, 2011, which, in this personal injury action arising out of a multivehicle accident, denied the motion by defendants Audette Henry s/h/a Henry Audette and Darnell Lemuel for summary judgment dismissing the complaint and any cross claims against them, and denied plaintiff's motion for partial summary judgment on the issue of liability as against defendants Richard A. Milko, Jr. and Russell Reid Waste Hauling & Disposal Service Co., Inc. (collectively the Milko defendants), unanimously affirmed, without costs.

Defendants Henry and Lemuel failed to make a prima facie showing of entitlement to judgment as a matter of law, as the evidence they submitted did not establish the absence of a triable issue of fact as to whether Henry negligently operated the vehicle owned by Lemuel, and whether any negligence on Henry's part caused the accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Indeed, Henry did not submit an affidavit or deposition testimony describing her account of the accident, and neither the police accident report nor defendant Milko's deposition testimony described Henry's conduct prior to the collision.

Although the vehicle operated by Milko and owned by Russell Reid rear-ended plaintiff's decedent's vehicle, plaintiff's motion for partial summary judgment was correctly denied. The deposition testimony of the police officer who investigated the accident raised an issue of fact as [*2]to whether plaintiff's decedent was driving under the influence of drugs and thereby caused or contributed to the accident (see Tann v Herlands, 224 AD2d 230, 230 [1996]).

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

ENTERED: APRIL 10, 2012

CLERK