Black v Spanos

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Black v Spanos 2019 NY Slip Op 35068(U) November 19, 2019 Supreme Court, Bronx County Docket Number: Index No. 28665/2019E Judge: John R. Higgitt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: BRONX COUNTY CLERK 12/02/2019 03:49 PM NYSCEF DOC. NO. 40 INDEX NO. 28665/2019E RECEIVED NYSCEF: 12/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: 1.A.S. PART 14 --------------------------------------------------------------------X DONNETTE BLACK, Plaintiff, - against - DECISION AND ORDER Index No. 28665/2019E JOHN SPANOS, Defendant. ----------------------------------------------------------------------X John R. Higgitt, J. Upon plaintiffs August 27, 2019 notice of motion and the affirmation, affidavits and exhibits submitted in support thereof; defendant's September 5, 2019 affirmation in opposition and the exhibits submitted therewith; plaintiffs affirmation in reply; and due deliberation; plaintiffs motion for partial summary judgment on the issue of defendant's liability for causing the subject accident and dismissal of defendant's affirmative defense alleging plaintiffs comparative fault is denied. This is a negligence action to recover damages for personal injuries that plaintiff allegedly sustained in a motor vehicle accident that took place on September 25, 2018. In support of her motion, plaintiff submitted the pleadings, the police accident report, her affidavit and the affidavit of non-party witness Lee S. Wolosky. Plaintiff averred that at the time of the accident she was driving on Coswold Road in Westchester County with Mr. Wolosky as a passenger when she had to come to a stop due to a red traffic signal. After the signal turned green, plaintiff proceeded to cross the intersection when defendant's vehicle, which was travelling on Old Army Road, allegedly failed to stop at the red traffic signal controlling his direction of travel and struck the rear side of plaintiffs vehicle. Non-party witness Mr. Wolosky's affidavit corroborated plaintiffs narrative of the accident. Defendant opposed the motion, relying on his affidavit in which he averred that at the [* 1] 2 of 4 INDEX NO. 28665/2019E FILED: BRONX COUNTY CLERK 12/02/2019 03:49 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/02/2019 time of the accident he was travelling on Old Army Road with a green traffic light in his favor. Defendant averred that before entering the intersection he looked both ways to make sure that there were no approaching vehicles, then proceeded into the intersection. At that time, plaintiffs vehicle entered the intersection, causing the subject accident. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City ofNew York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Wine grad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Summary judgment should be denied where there is any doubt as to the existence of a triable issue (see Zuckerman, supra). When there is conflicting evidence as to how an accident occurred, summary judgment is inappropriate (see Elamin v Robert Express, Inc., 290 AD2d 291 [1st Dept 2002]). In deciding a summary judgment motion, the court should not weigh the parties' credibility (see Krupp v Aetna Life & Casualty Co., 103 AD2d 252, 262 [2d Dept 2002]). The conflicting versions as to how the accident occurred demonstrate the existence of issues of fact and credibility, making summary judgment in favor of plaintiff inappropriate (see Peritore v Anna & Diane Cab Corp., 127 AD3d 669 [1st Dept 2014]). Notably, defendant denies making the particular statement attributed to him in the police report (and, by extension, denies making the similar inculpatory statement Mr. Wolosky asserts that defendant made). "The credibility of the defendant's assertion that he did not make the statement attributed to him [in the police report] is for a jury to determine; it is not incredible as a matter oflaw" (lmamkhodjaev v Kartvelishvili, 44 AD3d 619 [2d Dept 2007]). 2 [* 2] 3 of 4 INDEX NO. 28665/2019E FILED: BRONX COUNTY CLERK 12/02/2019 03:49 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/02/2019 Accordingly, it is ORDERED, that plaintiff's motion for summary judgment is denied. The parties are reminded of the March 6, 2020 compliance conference before the undersigned. This constitutes the decision and order of the court. Dated: November 19, 2019 J o h n R ~ .C. 3 [* 3] 4 of 4

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