Opinion
2020–04768 Index No. 719564/18
08-09-2023
Caihong DELGADO, plaintiff-respondent, v. Justin LACHMAN, et al., appellants, MTA Bus Company, et al., defendants-respondents, et al., defendant.
Montfort, Healy, McGuire & Salley, LLP, Garden City, NY (John W. Hoefling and Jeffrey Present of counsel), for appellants. Caesar & Napoli, P.C., New York, NY (Kelsey M. Crowley of counsel), for plaintiff—respondent. Armienti, DeBellis & Rhoden, LLP, New York, NY (Vanessa M. Corchia and Christopher M. Grimaldi of counsel), for defendants-respondents.
Montfort, Healy, McGuire & Salley, LLP, Garden City, NY (John W. Hoefling and Jeffrey Present of counsel), for appellants.
Caesar & Napoli, P.C., New York, NY (Kelsey M. Crowley of counsel), for plaintiff—respondent.
Armienti, DeBellis & Rhoden, LLP, New York, NY (Vanessa M. Corchia and Christopher M. Grimaldi of counsel), for defendants-respondents.
BETSY BARROS, J.P., ROBERT J. MILLER, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendants Justin Lachman and Veerasammy Lachman appeal from stated portions of an order of the Supreme Court, Queens County (Joseph Risi, J.), dated June 3, 2020. The order, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendants Justin Lachman and Veerasammy Lachman.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendants Justin Lachman and Veerasammy Lachman, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In October 2017, the plaintiff was a passenger on a bus operated by the defendant Eric McClain (hereinafter the MTA driver) and owned by the defendants MTA Bus Company, Metropolitan Transportation Authority, and New York City Transit Authority. The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained after the bus came into contact with the rear of a vehicle owned by the defendant Veerasammy Lachman and operated by the defendant Justin Lachman (hereinafter together the Lachman defendants). Before depositions were held, the plaintiff moved, inter alia, for summary judgment on the issue of liability against the Lachman defendants. The Supreme Court, among other things, granted that branch of the plaintiff's motion. The Lachman defendants appeal.
The Supreme Court erred in granting that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the Lachman defendants. "The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers" ( Ochoa v. Townsend, 209 A.D.3d 867, 868, 177 N.Y.S.3d 81 ; see Morris v. Dorota, 187 A.D.3d 1174, 1174, 131 N.Y.S.3d 577 ). Nonetheless, "if the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, ... summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger" ( Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18, 24, 22 N.Y.S.3d 75 ; see Lindo v. Katz, 205 A.D.3d 1016, 1017, 166 N.Y.S.3d 883 ). In support of her motion, the plaintiff submitted her own affidavit and a certified police accident report, which constituted admissible hearsay evidence (see Yassin v. Blackman, 188 A.D.3d 62, 65–67, 131 N.Y.S.3d 53 ; Memenza v. Cole, 131 A.D.3d 1020, 1021–1022, 16 N.Y.S.3d 287 ). The plaintiff, however, failed to establish, prima facie, that the Lachman defendants were at fault for or contributed to the happening of the accident by allegedly stopping short (see Taylor v. Brat Auto Sales, Ltd., 145 A.D.3d 701, 702, 42 N.Y.S.3d 346 ; Mu–Jin Chen v. Cardenia, 138 A.D.3d 1126, 1128, 31 N.Y.S.3d 134 ). Accordingly, the court should have denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the Lachman defendants, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The Lachman defendants’ remaining contentions are without merit.
We decline the Lachman defendants’ request to search the record and award them summary judgment dismissing the complaint and all cross-claims insofar as asserted against them.
BARROS, J.P., MILLER, GENOVESI and TAYLOR, JJ., concur.