Diaz v Jadan

Diaz v Jadan 2014 NY Slip Op 02721 Decided on April 22, 2014 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 22, 2014
Tom, J.P., Renwick, Richter, Feinman, Gische, JJ.
12288 21100/11

[*1]Ruben Diaz, Plaintiff-Appellant,

v

Luis Jadan, Defendant-Respondent, "John Doe," etc., Defendant.




William Pager, Brooklyn, for appellant.
Law Offices of Karen L. Lawrence, Tarrytown (David Holmes
of counsel), for respondents.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered September 14, 2012, which denied plaintiff's motion for summary judgment on the issue of liability as premature, with leave to renew following discovery, unanimously affirmed, without costs.

Contrary to defendant's contention, the order is appealable as of right because the denial of the motion, even with leave to renew, affects a "substantial right" of plaintiff (CPLR 5701[a][v]; Moleon v Kreisler Borg Florman General Constr. Co., 304 AD2d 337 [1st Dept 2003]).

On the merits, the court correctly denied plaintiff's motion for summary judgment on the issue of liability as premature (see CPLR 3212[f]; Belziti v Langford, 105 AD3d 649 [1st Dept 2013]). While plaintiff's affidavit established prima facie that the driver of a vehicle registered to defendant was negligent in hitting plaintiff's vehicle in the rear at a stoplight, it did not disclose the driver's identity, among other things, leaving defendant without the ability to determine whether there was a non-negligent explanation for the alleged accident (see Williams v Kadri, 112 AD3d 442 [1st Dept 2013]), or whether a defense based on non-permissive use may be available. Nor did plaintiff deny knowledge of the driver's identity, which the driver would have been required to provide in the event of personal injury or property damage resulting from the accident (see Vehicle & Traffic Law § 600).

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

ENTERED: APRIL 22, 2014 [*2]

CLERK