Opinion
2014-04-17
Joy JEFFREY, et al., Plaintiffs–Appellants, v. Diana DeJESUS, et al., Defendants–Respondents.
Robert I. Gruber, P.C., Rye Brook (Robert I. Gruber of counsel), for appellants. Kelly, Rode & Kelly, LLP, Mineola (John W. Hoefling of counsel), for respondents.
Robert I. Gruber, P.C., Rye Brook (Robert I. Gruber of counsel), for appellants. Kelly, Rode & Kelly, LLP, Mineola (John W. Hoefling of counsel), for respondents.
RENWICK, J.P., MOSKOWITZ, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered January 10, 2013, which, to the extent appealed from as limited by the briefs, denied plaintiffs' motion for partial summary judgment on the issues of serious injury and liability as premature, unanimously modified, on the law, the motion denied on the merits as to the issue of liability, and otherwise affirmed, without costs.
Plaintiffs made a prima facie showing of negligence on the part of defendants, by submitting the affidavit of plaintiff driver, Shella Spencer. Spencer attested that the accident at issue occurred when defendants' vehicle struck the back of the vehicle she was operating ( see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726 [2008];Cabrera v. Rodriguez, 72 A.D.3d 553, 900 N.Y.S.2d 29 [1st Dept.2010] ).
In opposition, defendants raised an issue of fact as to whether there was a nonnegligent explanation for the collision through the affidavit from their driver, Diana DeJesus, who stated that plaintiff entered the entrance ramp lane and while attempting to pass a vehicle on the right, cut her off ( see Figueroa v. Cadbury Util. Constr. Corp., 239 A.D.2d 285, 657 N.Y.S.2d 422 [1st Dept.1997] ). Plaintiffs' contention that DeJesus made an inconsistent statement following the accident, as recorded in the police accident report, is not conclusive but raises an issue of credibility to be resolved by the factfinder ( see Stewart v. Ellison, 28 A.D.3d 252, 254, 813 N.Y.S.2d 397 [1st Dept.2006] ).
Although discovery was not complete, the motion court erred in concluding that plaintiffs' motion for partial summary judgment on the issue of liability was premature. Both drivers submitted affidavits, and defendants were able to submit facts “essential to justify opposition [to the motion]” ( seeCPLR 3212[f]; Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 [1st Dept.2009] ).
However, that branch of plaintiffs' motion seeking summary judgment on the threshold issue of serious injury was properly denied as premature. We note that plaintiffs served their long overdue discovery responses shortly before moving for summary judgment. Accordingly, limited discovery has been conducted, and facts essential to justify opposition are within plaintiffs' knowledge ( seeCPLR 3212[f]; Grande v. Peteroy, 39 A.D.3d 590, 833 N.Y.S.2d 615 [2nd Dept.2007] ).
We have considered plaintiffs' remaining arguments and find them unavailing.