Obiotta v Dukes Sys. Corp.

Obiotta v Dukes Sys. Corp. 2015 NY Slip Op 07217 Decided on October 6, 2015 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 October 6, 2015
Gonzalez, P.J., Mazzarelli, Sweeny, Richter, Manzanet-Daniels, JJ.
15772 309033/09

[*1] Raymond Obiotta, Plaintiff-Appellant,

v

Dukes System Corp., et al., Defendants-Respondents, Carolyn Gardner, et al., Defendants.

Law Offices of Rommel Daniel, New York (Bryan Brockington of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Henry Mascia of counsel), for respondents.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered January 2, 2014, granting the motion of defendants Dukes System Corp. and Jesus Baello for leave to file a late motion for summary judgment and, upon doing so, granting summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

Defendants acknowledged that their motion for summary judgment was filed 21 days after the expiration of the time period provided in CPLR 3212(a) as a result of an error by their attorney in calendaring the deadline. The motion court did not improvidently exercise its discretion in finding good cause for the delay based on the detailed affidavit by counsel concerning the error (see Gonzalez v 98 Mag Leasing Corp, 95 NY2d 124, 128-129 [2000]).

The court also properly granted the motion for summary judgment. Defendant Baello, the driver of the truck, testified that his truck was stopped when the vehicle that was towing plaintiff's vehicle crossed the double yellow line into oncoming traffic, and swerved to avoid hitting his truck, causing plaintiff's vehicle to collide with the truck. In opposition, plaintiff failed to present evidence sufficient to raise a triable issue of fact as to defendants' negligence. Contrary to plaintiff's argument, Baello's alleged failure to take evasive action was not the proximate cause of the accident (see Garcia v Verizon N Y, Inc, 10 AD3d 339, 340 [1st Dept 2004]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 6, 2015

CLERK