Opinion
2018–03985 Index No. 31403/17
02-20-2019
Marc E. DUVALSAINT, Respondent, v. Jorge YUPE–GARCIA, et al., Appellants.
Goergen, Manson & McCarthy, Middletown, N.Y. (William A. Magliano of counsel), for appellants. Adams Law Firm, P.C., Bardonia, N.Y. (Jeffrey M. Adams of counsel), for respondent.
Goergen, Manson & McCarthy, Middletown, N.Y. (William A. Magliano of counsel), for appellants.
Adams Law Firm, P.C., Bardonia, N.Y. (Jeffrey M. Adams of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Rockland County (Sherri L. Eisenpress, J.), dated January 22, 2018. The order granted the plaintiff's motion for summary judgment on the issue of liability. ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
It is undisputed that on July 1, 2016, at the intersection of Route 45 and East Eckerson Road in Ramapo, a vehicle operated by the plaintiff collided with a vehicle owned by the defendant David H. Rolls and operated by the defendant Jorge M. Yupe–Garcia (hereinafter together the defendants). The plaintiff alleged that Yupe–Garcia "ran a red light" at the intersection and drove into the front of the defendant's vehicle. The plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging that the defendants were negligent in, among other things, the ownership and operation of their vehicle. After joinder of issue, but before depositions had occurred, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the motion, and the defendants appeal.
The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting, inter alia, his affidavit, demonstrating that he was proceeding through a green traffic light when the defendant driver entered the intersection against a red traffic light, and that the defendant driver's conduct was the sole proximate cause of the accident (see Jiang–Hong Chen v. Heart Transit, Inc., 143 A.D.3d 945, 946, 39 N.Y.S.3d 504 ; Joaquin v. Franco, 116 A.D.3d 1009, 1009–1010, 985 N.Y.S.2d 131 ; Deleg v. Vinci, 82 A.D.3d 1146, 919 N.Y.S.2d 396 ; Pitt v. Alpert, 51 A.D.3d 650, 651, 857 N.Y.S.2d 661 ; see also Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ). However, in opposition, the defendants raised a triable issue of fact as to how the subject accident occurred and whether the defendant driver was negligent at all in the happening of the accident (see Pilgrim v. Vishwanathan, 151 A.D.3d 769, 771, 56 N.Y.S.3d 268 ; see generally Pyo v. Tribino, 141 A.D.3d 639, 640, 34 N.Y.S.3d 904 ; Drakh v. Levin, 123 A.D.3d 1084, 1085, 1 N.Y.S.3d 202 ; Menelas v. Yearwood–Bobb, 100 A.D.3d 603, 605, 953 N.Y.S.2d 286 ; Klopchin v. Masri, 45 A.D.3d 737, 738, 846 N.Y.S.2d 311 ). The defendants submitted the affidavit of the defendant driver, which contradicted the plaintiff's version of the accident in that the defendant driver averred that the plaintiff had entered the intersection against a red light while the defendant driver was proceeding through the intersection with the green light in his favor.
Contrary to the Supreme Court's determination, none of the statements contained in the defendant driver's affidavit contradicted his earlier statement to the police that "he thought the light turned green so he began to proceed through the intersection." This statement in the accident report is not an admission of negligence on the part of the defendant driver, and thus, the averments in his affidavit concerning how the accident occurred cannot be said to have been made in an attempt to create feigned issues of fact designed to avoid the consequences of the instant motion (see Menelas v. Yearwood–Bobb, 100 A.D.3d at 605, 953 N.Y.S.2d 286 ; cf. Fontana v. Fortunoff, 246 A.D.2d 626, 668 N.Y.S.2d 394 ; Abramov v. Miral Corp., 24 A.D.3d 397, 805 N.Y.S.2d 119 ).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.
DILLON, J.P., COHEN, DUFFY and CHRISTOPHER, JJ., concur.