Craig v Odesanya

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Craig v Odesanya 2009 NY Slip Op 33285(U) September 30, 2009 Supreme Court, New York County Docket Number: 110609/08 Judge: Paul Wooten Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART HON. PAUL WOOTEN PRESENT: 22 Justice VALENTINA CRAIG and JACKSON BOSWORTH , I 10609108 INDEX NO. Plalntiff, MOTION DATE V - MOTION SEQ. NO. 001 VICTOR ODESANYA and GENESIS OPERATING CORP., Defendants. MOTION CAL. NO. The following papers, numbered I to 3 were read phi@ issue of liability. motion for summary judgment on the / I PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - Exhibits (Memo) I Replying Affidavits (Reply Memo) C ross-Motion: - Yes NO E1 I On May 8, 2008, plaintiffs Valentina Craig and Jackson Bosworth, were involved in a collision, while passengers in a taxi cab owned by defendant Genesis Operating Corp. and operated by defendant Victor Odesanya. The accident occurred on Seventh Avenue near its intersection with West 18thStreet. The plaintiffs commenced this action to recover damages for alleged personal injuries suffered as a result of the subject accident. The plaintiffs now move for an order pursuant to CPLR § 3212, granting summary judgment on the issue of liability. SU MMARY J UDGMENT STANDARD The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material Page 1 of 4 [* 2] issues of fact (JMD Holding Corp. v Congress Fin. C o p , 795 NY2d 502 [2005]; Alvarez v Prospect Hospital, 68 NY2d 320 [ I 9861; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckennan v C i y of New Yo&, 49 NY2d 557, 562 [1980]; Thomas w Holzberg, 751 NYS2d 433, 434 [ I Dept 20021). The motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof. . .I' (CPLR 5 3212 [b]). A party may also demonstrate a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckeman, supra; Prudential Securities lnc. v Rovello, 692 NYS2d 67 [l Dept 19991). Where the plaintiff has established a prima facie case of negligence, defendants are required to submit evidentiary proof in admissible form raising triable issues of material fact in order to defeat the motion for summary judgment (Mazurek v Metropolitan Museum of Ad, 812 NYS2d 12 [ 1 Dept 20061; Perez v Brux Cab C o p . , 674 NY2d 343 [1 Dept 19981; Zuckerman v City of New Yo&, supra). DISCUSSION In support of their motion, the plaintiffs have submitted, inter alia, a copy of the pleadings and their affidavits. The plaintiffs claim that while they were passengers in defendant Odesanya's taxicab, he lost control of his vehicle and collided with a parked vehicle. At the time of the subject accident, plaintiff Craig was seated in the back of the taxicab and plaintiff Bosworth was seated in the right front seat of the vehicle. Plaintiff Craig, stated in her affidavit, that she did not hear any screeching of brakes or sounding of a horn, at the time of the subject accident and that the road was in good condition. Plaintiff Bosworth stated, in his affidavit, that he specifically observed Page 2 of 4 [* 3] defendant Odesanya take his eyes off of the road, thus causing the subject accident. In opposition the defendants have submitted defendant Oseyana s affidavit. Defendant Oseyana alleges that the plaintiffs were intoxicated when they entered his taxicab, Defendant Odesanya claims that he asked the plaintiffs to exit his vehicle and when they would not comply, he proceeded to drive them to their destination. Defendant Odesanya claims that as he was driving, the passengers in the back seat began arguing and one passenger, in the rear seat, became extremely loud and began using obscene and abusive language toward him. Defendant Odesanya, a man of West African decent, claims that when a passenger, in the rear seat, referred to him as a nigger , he was so shocked that he turned around while he was driving, thus, colliding with a parked vehicle. Defendant Oseyana argues the intoxicated and verbally abusive plaintiffs were the proximate cause of the subject accident. It is well settled that the standard of conduct for the driver of a motor vehicle, is that of reasonable care. A prima facie case of negligence is established when the driver of a car loses control through no fault of another, which results in an injury to a passenger (Felberbaurn v Weinberger, 2007 NY Slip Op 4257, 1 [2007]; Dudley v Ford Credit Titling Trust, 307 AD2d 91 1 [ 20031). However, in deciding a summary judgment motion, the court must bear in mind that issue finding rather than issue determination is the key to summary judgment (See Sillman v Twentieth CenfuryFox Film Corporation, 3 NY2d 395, 165 NYS2d 489 [1957]). Furthermore, since summary judgment is a drastic remedy which deprives a litigant of her day in court, the evidence adduced on the motion must be liberally construed in the light most favorable to the opposing party (See Kesselman v Lever House Restaurant, 816 NYS2d 13, 29 AD3d 302, [IDept Page3of 4 [* 4] 20061; Goldman v Metropolitan Life insurance Company, 780 NYS2d 25, 13 AD3d 289, [I Dept 20041). In light of the two different versions of events presented by the parties regarding the circumstances of the subject accident, there remains issues of fact as to the cause of the subject accident, thus, requiring resolution by a trial. Accordingly, the plaintiffs have failed to meet their burden to establish the absence of any material issues of fact (JMD Holding Corp. v Congress Fin. C o p . , supra ;Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Cfr., 64 NY2d 851 , 853 [ 19851; Zuckerman v City of New Yo&, supra; Thomas v Holrberg, supra). For these reasons and upon the foregoing papers, it is, d ORDERED that plaintiffs motion on the issue of liability is denied; and it is further, ORDERED that the clerk is directed to enter judgment This constitutes the Decision and Order of the Court. 1 I Dated: September 30,2009 Mooten J. Say, Paul Wootal t Check one: 11 FINAL DISPOSITION Check if appropriate: NON-FINAL DISPOSITION n DO NOT POST Page 4 of 4 J.S.C .

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