Opinion
No. 2023-02726 Index No. 717779/18
08-28-2024
Freddy Gironza, et al., respondents, v. Secundino Macedonio, et al., defendants, Fredy R. Jara Mejia, appellant.
Michael Ferro, Melville, NY (Andrew Weber of counsel), for appellant.
Michael Ferro, Melville, NY (Andrew Weber of counsel), for appellant.
FRANCESCA E. CONNOLLY, J.P. LINDA CHRISTOPHER LARA J. GENOVESI LAURENCE L. LOVE, JJ
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Fredy R. Jara Mejia appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered February 10, 2023. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Fredy R. Jara Mejia for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against him is granted.
The plaintiffs allegedly were injured when a motor vehicle owned by the defendant Secundino Macedonio and operated by the defendant Julian Cruz Arce came into contact with a motor vehicle operated by the defendant Phurbu Tsering, in which the plaintiffs were passengers, at an intersection in Queens. At the time of the accident, the defendant Fredy R. Jara Mejia was the operator of a motor vehicle that was stopped at a red light at the intersection and that was struck by the vehicle operated by Cruz Arce. The plaintiffs commenced this action against Macedonio, Cruz Arce, Tsering, and Jara Mejia, among others, to recover damages for personal injuries. Macedonio, Cruz Arce, and Tsering asserted cross-claims against, inter alia, Jara Mejia. Jara Mejia subsequently moved for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against him. The Supreme Court, among other things, denied Jara Mejia's motion. Jara Mejia appeals.
"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" (Boulos v Lerner-Harrington, 124 A.D.3d 709, 709; see Pouncey v New York City Tr. Auth., 219 A.D.3d 512). In support of his motion, Jara Mejia submitted, inter alia, a transcript of his deposition testimony and transcripts of the deposition testimony of the plaintiffs, Tsering, and Cruz Arce. Contrary to the Supreme Court's determination, Jara Mejia's unsigned but certified deposition transcript was admissible, "since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent" (David v Chong Sun Lee, 106 A.D.3d 1044, 1045; see Yerry v Whole Food Mkt. Group, Inc., 208 A.D.3d 733, 734; E.W. v City of New York, 179 A.D.3d 747, 748; Baptiste v Ditmas Park, LLC, 171 A.D.3d 1001, 1002; Vetrano v J. Kokolakis Contr., Inc., 100 A.D.3d 984, 986; Rodriguez v Ryder Truck, Inc., 91 A.D.3d 935, 936). In addition, while the remaining deposition transcripts were also unsigned, they were certified and their accuracy was not challenged (see Yerry v Whole Food Mkt. Group, Inc., 208 A.D.3d at 734; Celestin v 40 Empire Blvd., Inc., 168 A.D.3d 805, 808; Jung Geun Lee v Mason, 139 A.D.3d 807; Thomas v City of New York, 124 A.D.3d 872, 873; Femia v Graphic Arts Mut. Ins. Co., 100 A.D.3d 954, 955; Boadu v City of New York, 95 A.D.3d 918, 919; Rodriguez v Ryder Truck, Inc., 91 A.D.3d at 936). Thus, the deposition transcripts were admissible and should have been considered by the court on Jara Mejia's motion.
In addition, Jara Mejia established his prima facie entitlement to judgment as a matter of law dismissing the amended complaint and all cross-claims insofar as asserted against him by submitting, inter alia, the transcript of his deposition testimony, transcripts of the deposition testimony of the plaintiffs, Tsering, and Cruz Arce, and a police accident report (see Gaeta v Carter, 6 A.D.3d 576, 577). The Supreme Court erred in determining that the police accident report demonstrated the existence of triable issues of fact as to Jara Mejia's alleged negligence. No triable issues of fact were raised in opposition to Jara Mejia's motion.
Accordingly, the Supreme Court should have granted Jara Mejia's motion for summary judgment dismissing the amended complaint and all cross-claims insofar as asserted against him.
CONNOLLY, J.P., CHRISTOPHER, GENOVESI and LOVE, JJ., concur.