Licurgo-Cruz v Ahmed

Licurgo-Cruz v Ahmed 2014 NY Slip Op 03952 Decided on June 3, 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 June 3, 2014
Tom, J.P., Renwick, Andrias, Freedman, Clark, JJ.
12640 309467/10

[*1] Juan Eduardo Licurgo-Cruz, Plaintiff-Appellant,

v

MD Ahmed, et al., Defendants-Respondents.

The Law Offices of Joseph Monaco, PC, New York (Joseph D. Monaco of counsel), for appellant.

Marjorie E. Bornes, Brooklyn, respondents.

Order, Supreme Court, Bronx County (Mitchell Danzinger, J.), entered June 14, 2013, which denied plaintiff's motion for partial summary judgment, without prejudice to making such motion following discovery, unanimously affirmed, without costs.

Plaintiff's own motion papers failed to make a prima facie showing of entitlement to judgment as a matter of law, and so he was not entitled to summary judgment regardless of the adequacy of the opposition (see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985]). Moreover, the court properly found that plaintiff's motion was premature, as the agreed-upon, so-ordered discovery, including plaintiff's own deposition and independent medical examination, had not yet occurred. Plaintiff has exclusive knowledge as to his speed, why he was riding his bicycle in the bus lane, and why he chose to pass defendants' cab

on the right side when it pulled over and stopped to let out a passenger, and defendants are entitled to explore these and other

issues during discovery.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 3, 2014

CLERK