Thompson v Pizzaro

Thompson v Pizzaro 2017 NY Slip Op 07693 Decided on November 2, 2017 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 November 2, 2017
Tom, J.P., Renwick, Mazzarelli, Oing, Singh, JJ.
4889

[*1]Isaac Thompson, Plaintiff-Respondent,

v

Robert Pizzaro, et al., Defendants-Appellants.

Wade Clark Mulcahy, New York (Christopher J. Soverow of counsel), for appellants,

William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered June 22, 2016, which granted plaintiff's motion for partial summary judgment as to liability, unanimously affirmed, without costs.

Plaintiff satisfied his prima facie burden by submitting photographic evidence of the accident site and an affidavit in which he averred that while turning right from a designated lane, defendants' vehicle, which had been in the lane to the immediate left of plaintiff, turned wide to the right, entered plaintiff's lane, and collided with his car. Unless refuted or excused, defendants' actions violated Vehicle and Traffic Law §§ 1128(a) and 1163(a), establishing negligence (see Delgado v Martinez Family Auto, 113 AD3d 426, 427 [1st Dept 2014]).

In opposition to plaintiff's prima facie showing, defendants failed to submit any evidence to raise a triable issue of fact, and instead relied solely upon the pleadings and the arguments of counsel. Since counsel claimed no personal knowledge of the accident, his affirmation has no probative value (Bendik v Dybowski, 227 AD2d 228, 229 [1st Dept 1996]).

Plaintiff's motion was not premature. Depositions are unnecessary, since defendants have personal knowledge of the facts, yet "failed to meet their obligation of laying bare their proof and presenting evidence sufficient to raise a triable issue of fact" (Avant v Cepin Livery Corp., 74 AD3d 533, 534 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 2, 2017

CLERK