Thomas v Gonzalez

Thomas v Gonzalez 2018 NY Slip Op 01145 Decided on February 15, 2018 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 February 15, 2018
Friedman, J.P., Tom, Mazzarelli, Singh, JJ.
5740 302228/14

[*1]Anthony Thomas, Plaintiff-Respondent,

v

Elvy Gonzalez, Defendant-Appellant.

Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.

Michael B. Palillo, P.C., New York (Michael B. Palillo of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about May 5, 2017, which, to the extent appealed from, in this action for personal injuries sustained when plaintiff bicyclist was struck by a motor vehicle driven by defendant, denied defendant's motion to renew his motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion for renewal granted and, upon renewal, defendant's motion for summary judgment granted. The Clerk is directed to enter judgment accordingly.

Defendant taxi driver demonstrated that the alleged new facts uncovered in a deposition conducted after the decision on the original motion would change the prior determination of the motion court to deny his summary judgment motion (see CPLR 2221[e][2]; 212 Inv. Corp. v Kaplan, 44 AD3d 332, 333 [1st Dept 2007]; Montero v Elrac, Inc., 16 AD3d 284 [1st Dept 2005]). Following the determination of the original motion, plaintiff's main fact witness was deposed and gave testimony materially inconsistent with his sworn statements in the affidavit plaintiff had submitted in opposition to the original motion. The conclusion of plaintiff's expert that defendant had been at fault in the subject accident was based on the factual account given in the witness's affidavit. Accordingly, defendant was entitled to renewal based on the witness's deposition testimony discrediting his earlier affidavit and, upon renewal, to summary judgment dismissing the complaint.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 15, 2018

CLERK