Opinion
2021–03109 Index No. 707425/20
09-13-2023
Glenn ELFE, appellant, v. Lawrence ROMAN, et al., respondents.
Subin Associates, LLP, New York, NY (Robert J. Eisen of counsel), for appellant. Gallo Vitucci Klar LLP, New York, NY (C. Briggs Johnson of counsel), for respondents.
Subin Associates, LLP, New York, NY (Robert J. Eisen of counsel), for appellant.
Gallo Vitucci Klar LLP, New York, NY (C. Briggs Johnson of counsel), for respondents.
COLLEEN D. DUFFY, J.P., ANGELA G. IANNACCI, CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Risi, J.), entered April 19, 2021. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability is granted.
The plaintiff commenced this action against the defendants to recover damages for personal injuries that he allegedly sustained when a vehicle operated by the defendant Lawrence Roman struck the vehicle operated by the plaintiff. Prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability. In an order entered April 19, 2021, the Supreme Court, among other things, denied that branch of the plaintiff's motion. The plaintiff appeals.
When moving for summary judgment on the issue of liability in a negligence action, a plaintiff " ‘must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries’ " ( Sapienza v. Harrison, 191 A.D.3d 1028, 1028, 142 N.Y.S.3d 584, quoting Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ). A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Jaipaulsingh v. Umana, 208 A.D.3d 765, 766, 174 N.Y.S.3d 413 ). Vehicle and Traffic Law § 1128(a) provides that "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety."
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability. In support of his motion, the plaintiff submitted a transcript of his testimony at a hearing pursuant to General Municipal Law § 50–h wherein he testified that while the vehicle that Roman was operating was traveling in the far right lane of a three-lane highway, Roman swerved into the vehicle the plaintiff was operating, which was traveling in the far left lane. This testimony established, prima facie, that Roman changed lanes before ascertaining that such movement could be made safely in violation of Vehicle and Traffic Law § 1128(a) (see Jaipaulsingh v. Umana, 208 A.D.3d at 765, 174 N.Y.S.3d 413 ; Pena v. KST Trucking, Inc., 206 A.D.3d 1007, 1007, 168 N.Y.S.3d 874 ).
In opposition, the defendants failed to raise a triable issue of fact. Contrary to the defendants’ contention, Roman's affidavit, wherein he stated that he quickly steered into the left lane after "glanc[ing]" to his left, when the vehicle operated by the plaintiff "apparently attempted to pass [him] quickly on the driver's side," did not establish a nonnegligent excuse for the happening of the accident (see Orellana v. Mendez, 208 A.D.3d 888, 890, 174 N.Y.S.3d 445 ). Moreover, the defendants failed to demonstrate that the emergency doctrine was applicable (see Capuozzo v. Miller, 188 A.D.3d 1137, 1138, 136 N.Y.S.3d 416 ). The defendants failed to proffer sufficient evidence to support the claimed emergency (see id. at 1138, 136 N.Y.S.3d 416 ; Jacobellis v. New York State Thruway Auth., 51 A.D.3d 976, 977, 858 N.Y.S.2d 786 ).
Further, the defendants’ contention that the motion was premature is without merit (see CPLR 3212[f] ; Sapienza v. Harrison, 191 A.D.3d at 1030, 142 N.Y.S.3d 584 ). " ‘A party who contends that a summary judgment motion is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant’ " ( Sapienza v. Harrison, 191 A.D.3d at 1031, 142 N.Y.S.3d 584, quoting Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770, 989 N.Y.S.2d 302 ). Here, the defendants’ professed need to conduct depositions did not warrant denial of the motion. Since the defendants already had personal knowledge of the relevant facts, the mere hope or speculation that evidence might be uncovered was insufficient to deny the motion (see Quintanilla v. Mark, 210 A.D.3d 713, 715, 177 N.Y.S.3d 687 ; Sapienza v. Harrison, 191 A.D.3d at 1031, 142 N.Y.S.3d 584 ).
The defendants’ request for certain affirmative relief is not properly before this Court (see Ahmed v. Fernando, 210 A.D.3d 832, 833, 179 N.Y.S.3d 73 ).
Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.
DUFFY, J.P., IANNACCI, CHAMBERS and CHRISTOPHER, JJ., concur.