Opinion
438 22829/14E.
03-08-2016
Barrett C. DOWNEY, Plaintiff–Appellant, v. Anne Marie K. MAZZIOLI, Defendant, Orfelina D. Jorge, et al., Defendants–Respondents.
Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for appellant. Russo, Apoznanski & Tambasco, Melville (Gerard Ferrara of counsel), for respondents.
Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for appellant.
Russo, Apoznanski & Tambasco, Melville (Gerard Ferrara of counsel), for respondents.
Opinion
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered February 13, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability as against defendants Orfelina D. Jorge and Julio C. Jorge (collectively Jorge), unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of Jorge's liability, by submitting his affidavit averring that Jorge's vehicle struck the vehicle owned and operated by defendant Mazzioli in the rear, while plaintiff was a passenger in Mazzioli's vehicle (see Asante v. Williams, 227 A.D.2d 123, 641 N.Y.S.2d 317 1st Dept.1996 ). The potential issue of apportionment of fault as between Jorge and Mazzioli does not restrict plaintiff's right to partial summary judgment on the issue of liability as against the former (see Davis v. Turner, 132 A.D.3d 603, 20 N.Y.S.3d 2 1st Dept.2015; Couillard v Shaw Envtl. & Infrastructure Eng'g of N.Y., P.C., 125 A.D.3d 509, 4 N.Y.S.3d 176 1st Dept.2015 ). The court properly rejected Jorge's contention that plaintiff's motion was premature, since “[t]he mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion” (Davis, at 603, 20 N.Y.S.3d 2). Nor does defendant Jorge's attorney's affirmation satisfy defendant's burden of establishing a nonnegligent explanation for the rear-end collision.
MAZZARELLI, J.P., SWEENY, MANZANET–DANIELS, GISCHE, JJ., concur.