Xique v Fisco

Annotate this Case

Download PDF

Xique v Fisco 2023 NY Slip Op 31823(U) May 22, 2023 Supreme Court, Kings County Docket Number: Index No. 519690/2021 Judge: Francois A. Rivera 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: KINGS COUNTY CLERK 05/30/2023 11:43 AM NYSCEF DOC. NO. 23 INDEX NO. 519690/2021 RECEIVED NYSCEF: 05/30/2023 At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 22nd day of May 2023 HONORABLE FRANCOIS A. RIVERA --------------------------------------------------------------------X YORMAN XIQUE Plaintiff, DECISION & ORDER -againstIndex No.: 519690/2021 GREGORY J. FIS CO. Defendant. --------------------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed by defendant Gregory J. Fisco (hereinafter defendant) on September 22, 2022, under motion sequence number one for an order pursuant to CPLR 3212 granting summary judgment in the defendant's favor and dismissing the complaint of the plaintiff Yarman Xique (hereinafter the plaintiff). This motion is opposed by the plaintiff. -Notice of Motion -Petition -Affirmation in Support - Statement of Material Facts -Affidavit in Support -Exhibits C-E -Central Compliance Order -Defendant's Response to Discovery Demands -Affidavit in Opposition -Affirmation in Opposition -Response to Statement of Material Facts -Exhibit A (Affidavit of Plaintiff) -Affirmation in Reply Page 1 of 4 [* 1] 1 of 4 FILED: KINGS COUNTY CLERK 05/30/2023 11:43 AM NYSCEF DOC. NO. 23 INDEX NO. 519690/2021 RECEIVED NYSCEF: 05/30/2023 BACKGROUND On August 5, 2021, the plaintiff commenced the instant action for damages for personal injury by filing a summons and complaint with the Kings County Clerk's office. The complaint alleges the following salient facts. On June 25, 2021, the plaintiff was lawfully riding a bicycle at or about or adjacent to Maurice Avenue and 55 Drive, in the County of Queens, State of New York. On the same date, time and place, the defendant was operating his motor ve~icle, a 2016 Hyundai motor vehicle bearing New York license plate. On the same date and place, the defendant's motor vehicle contacted the plaintiffs bicycle causing the plaintiff to sustain serious physical injury (hereinafter the subject accident). The subject accident was caused by the defendant's negligent operation of his motor vehicle. LAW AND APPLICATION Defendants moving for summary judgment in a personal injury action must demonstrate, prim a facie, that they did not proximately cause the plaintiffs injuries (Valdez v MTA Bus Co., 210 AD3d 821, 821 [2d Dept 2022], citing Fargione v Chance, 154 AD3d 713, 714 [2d Dept 2017]). Since there can be more than one proximate cause of an accident, a defendant seeking summary judgment must establish freedom from comparative fault as a matter oflaw (Valdez v MTA Bus Co., 210 AD3d 821,821 [2d Dept 2022], citing Wilson v Mazewski, 175 AD3d 1352, 1353 [2d Dept 2019]). An accident can have more than one proximate cause, and although it is generally for the trier of fact to determine the issue of proximate cause, it may be decided as a [* 2] 2 of 4 Page 2 of 4 FILED: KINGS COUNTY CLERK 05/30/2023 11:43 AM NYSCEF DOC. NO. 23 INDEX NO. 519690/2021 RECEIVED NYSCEF: 05/30/2023 matter of law where only one conclusion may be drawn from the established facts (Elusma v Jackson, 186 AD3d 1326, 1328 [2d Dept 2020]). The defendant failed to make a prim a facie showing of entitlement to judgment as a matter of lav,1 • In support of the motion, the defendant submitted, among other things, his own affidavit, the affidavit of an eyewitness and a police report. The police report was not certified or authenticated and is therefore inadmissible and disregarded (Yassin v Blackman, 188 AD3d 62 [2d Dept 2020]). The affidavit of the defendant and of his eyewitness were inconsistent in the description of how the subject accident occurred. The plaintiff submitted an affidavit in opposition which directly conflicted with the affidavits submitted by the defendant as to how the subject accident occurred. Given the conflicting versions of how the subject accident occurred, it is for the trier of fact to evaluate the credibility of the witnesses and determine what happened (see Gray v Air Excel Serv. Corp., 171 AD3d 1026, 1028 [2d Dept 2019]). Since there are material issues of fact regarding how the subject accident occutTed, it cannot be determined as a matter of law whether the defendant driver was not at fault for the accident (see Nesbitt v Gallant, 149 AD3d 763 [2d Dept 2017]). Thus, the defendant has failed to meet the initial burden of demonstrating the absence of material issues of fact regarding the cause of the accident, and the motion is denied, regardless of the sufficiency of the plaintiff's opposition papers ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). [* 3] 3 of 4 Page 3 of 4 INDEX NO. 519690/2021 FILED: KINGS COUNTY CLERK 05/30/2023 11:43 AM NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 05/30/2023 CONCLUSION The notice of motion filed by defendant Gregory J. Pisco for an order pursuant to CPLR 3212 granting summary judgment in the defendant's favor and dismissing the complaint of the plaintiff Yorman Xique is denied. The foregoing constitutes the decision and order of this Court. ENTER: J.S.C. HON. FRANCOIS A. RIVERA J.S.C. Page 4 of 4 [* 4] 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.