Dorazio v Delbene

Dorazio v Delbene 2007 NY Slip Op 01511 [37 AD3d 645] February 20, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Anthony L. Dorazio, Respondent,
v
Linda A. Delbene et al., Appellants. (And Another Action.)

—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for appellants.

L.A. Beesecker, Cornwall, N.Y., for respondent.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Dutchess County (Sproat, J.), dated October 11, 2005, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff's negligence was the sole proximate cause of the accident (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Huggins v Figueroa, 305 AD2d 460 [2003]), and the plaintiff failed to raise a triable issue of fact in opposition to the motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]). The plaintiff's version of the accident was not credible as a matter of law since it was refuted by the physical evidence at the accident scene and the characteristics of the location where the collision occurred (see Hardy v Lojan Realty Corp., 303 AD2d 457 [2003]; Rodriguez v City of New York, 295 AD2d 590 [2002]; Sullivan v Pilevsky, 281 AD2d 410 [2001]), and it also was contrary to eyewitness accounts of the accident, the findings of police investigators, and the plaintiff's own admission following the collision. Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint. Schmidt, J.P., Mastro, Santucci and Fisher, JJ., concur.