Opinion
2014-04-22
Ruben DIAZ, Plaintiff–Appellant, v. Luis JADAN, Defendant–Respondent, “John Doe,” etc., Defendant.
William Pager, Brooklyn, for appellant. Law Offices of Karen L. Lawrence, Tarrytown (David Holmes of counsel), for respondents.
William Pager, Brooklyn, for appellant. Law Offices of Karen L. Lawrence, Tarrytown (David Holmes of counsel), for respondents.
TOM, J.P., RENWICK, RICHTER, FEINMAN, GISCHE, JJ.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered September 14, 2012, which denied plaintiff's motion for summary judgment on the issue of liability as premature, with leave to renew following discovery, unanimously affirmed, without costs.
Contrary to defendant's contention, the order is appealable as of right because the denial of the motion, even with leave to renew, affects a “substantial right” of plaintiff (CPLR 5701[a][v]; Moleon v. Kreisler Borg Florman General Constr. Co., 304 A.D.2d 337, 758 N.Y.S.2d 621 [1st Dept.2003] ).
On the merits, the court correctly denied plaintiff's motion for summary judgment on the issue of liability as premature ( seeCPLR 3212[f]; Belziti v. Langford, 105 A.D.3d 649, 963 N.Y.S.2d 654 [1st Dept.2013] ). While plaintiff's affidavit established prima facie that the driver of a vehicle registered to defendant was negligent in hitting plaintiff's vehicle in the rear at a stoplight, it did not disclose the driver's identity, among other things, leaving defendant without the ability to determine whether there was a non-negligent explanation for the alleged accident ( see Williams v. Kadri, 112 A.D.3d 442, 976 N.Y.S.2d 460 [1st Dept.2013] ), or whether a defense based on non-permissive use may be available. Nor did plaintiff deny knowledge of the driver's identity, which the driver would have been required to provide in the event of personal injury or property damage resulting from the accident ( seeVehicle & Traffic Law § 600).