Sanchez v Taveraz

Sanchez v Taveraz 2015 NY Slip Op 04945 Decided on June 11, 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 June 11, 2015
Tom, J.P., Renwick, Andrias, Manzanet-Daniels, Kapnick, JJ.
15405

[*1] Joseph Sanchez, et al., 20017/14E Plaintiffs-Appellants, —

v

Kathiana Taveraz, et al., Defendants-Respondents.

The Sullivan Law Firm, New York (James A. Domini of counsel), for appellants.

Law Offices of John Trop, Yonkers (David Holmes of counsel), for Kathiana and Roque Taveraz, respondents.

Adams, Hanson, Rego, Kaplan & Fishbein, Yonkers (Steven Grgas of counsel), Liberato Food, Inc. and Domingo Perez, respondents.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about May 23, 2014, which denied plaintiffs' motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiffs failed to establish entitlement to judgment as a matter of law in this action where plaintiffs, passengers in a vehicle owned by defendant Roque Taveraz and operated by defendant Kathiana Taveraz, were injured when the vehicle in which they were riding was involved in an accident with a vehicle driven by defendant Domingo Perez and owned by defendant Liberato Food. Plaintiffs failed to show that any of the defendants' negligence was a proximate cause of the accident (see Coleman v Maclas, 61 AD3d 569 [1st Dept 2009]). The police report upon which plaintiffs relied was uncertified (see Raposo v Robinson, 106 AD3d 593 [1st Dept 2013]), and plaintiffs' affidavits lack any details as to how the accident occurred (compare Delgado v Martinez Family Auto, 113 AD3d 426 [1st Dept 2014] [the plaintiff submitted an affidavit in which she stated that the driver of the vehicle in which she was riding apologized for driving at an excessive rate of speed, which constituted a party admission and established a violation of the Vehicle and Traffic Law]). To the extent the motion court found plaintiffs' possible failure to wear a seatbelt would be a defense to liability, such was error (id. at 428) because that would go to the issue of comparative negligence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 11, 2015

CLERK