Dankyi v McMikle

[*1] Dankyi v McMikle 2014 NY Slip Op 51869(U) Decided on December 22, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2013-879 K C

Fred Dankyi, Appellant,

against

Anthony K. McMikle, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 7, 2013. The order denied plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, without costs.

In this action to recover for property damage arising out of a motor vehicle accident, plaintiff alleged in his summons and endorsed complaint that defendant had been negligent "in the ownership, operation, maintenance, use, control and entrustment of his motor vehicle bearing license plate EHD4982(NY), on or about 01/02/2012 at approximately 6:30 pm at 12th Street and Broadway, New York." Defendant generally denied the allegations of the endorsed complaint.

Thereafter, plaintiff moved for summary judgment on the issue of liability. In support of the motion, plaintiff submitted, among other things, an affidavit by the person who had been driving plaintiff's vehicle, attesting to the fact that while he had been stopped at a red light, the vehicle owned by defendant, which had stopped over the crosswalk line, backed up and struck plaintiff's vehicle. Plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through the affidavit of the driver of his vehicle, which demonstrated that the driver of defendant's vehicle had been negligent because the driver had violated the statutory restrictions on backing up, as set forth in Vehicle and Traffic Law § 1211 (a).

In an affidavit in opposition, defendant stated that his vehicle had not been involved in an accident on the date and time in question. He further stated that the vehicle had not been stolen, nor had he loaned it or given anyone access to it.

In an order entered February 7, 2013, the Civil Court denied plaintiff's motion, finding that there was an issue of fact as to whether defendant's vehicle had been involved in the alleged accident. Plaintiff appeals from this order, invoking CCA 1102 (a) (1), which requires a defendant to specifically deny the defendant's ownership, operation or control of a vehicle, in a negligence action arising out of such ownership, operation or control of a vehicle, where the pleading states the registration or license number of such vehicle. The statute provides that, should the defendant fail to do so, the defendant's ownership, operation or control of such vehicle is deemed admitted, and need not be proven at trial.

We need not, however, reach the issue of whether CCA 1102 (a) (1) applies in this case, since, even if it applies, the provision should not be so broadly construed as to deem admitted the [*2]fact that defendant's vehicle was involved in the accident. Since defendant raised a triable issue of fact regarding his vehicle's involvement in the accident, plaintiff was not entitled to summary judgment on the issue of liability.

Accordingly, the order is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: December 22, 2014