Opinion
1014 CA 14-00184.
10-03-2014
Trevor JOHNSON, Plaintiff–Appellant, v. Alexa L. MURPHY and Corrine E. Murphy, Defendants–Respondents.
Law Office of William K. Mattar, P.C., Williamsville (Sara T. Wallitt of Counsel), for Plaintiff–Appellant. Costello, Cooney & Fearon, PLLC, Syracuse (Daniel P. Fletcher Of Counsel), for Defendants–Respondents.
Law Office of William K. Mattar, P.C., Williamsville (Sara T. Wallitt of Counsel), for Plaintiff–Appellant.
Costello, Cooney & Fearon, PLLC, Syracuse (Daniel P. Fletcher Of Counsel), for Defendants–Respondents.
PRESENT: CENTRA, J.P., FAHEY, WHALEN, AND DEJOSEPH, JJ.
Opinion
MEMORANDUM: Plaintiff commenced this action seeking damages for injuries he sustained when his bicycle collided with a motor vehicle driven by Corrine E. Murphy (defendant). Supreme Court properly granted defendants' motion for summary judgment seeking dismissal of the complaint. Defendants established that plaintiff rode his bicycle from his driveway into the road without stopping, despite the fact that his view of oncoming traffic to his left was obstructed by a commercial truck parked next to his driveway. Defendants further established that defendant, who had the right-of-way, was traveling below the speed limit and did not see plaintiff until plaintiff collided with the passenger side of her vehicle, thus giving her no time to react. Defendants therefore established that plaintiff was the sole proximate cause of the accident, and plaintiff failed to raise a triable issue of fact (see George v. Cerat, 118 A.D.3d 1475, 1476, 988 N.Y.S.2d 808 ; Rosa v. Scheiber, 89 A.D.3d 827, 828, 932 N.Y.S.2d 349 ; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ).
The court also properly denied plaintiff's cross motion seeking to compel defendants to provide discovery responses and for defendant “to appear at second party depositions.” As a preliminary matter, we note that although the cross motion was untimely, the court properly considered it to the extent that plaintiff argued that discovery was needed to oppose the motion (see CPLR 3212[f] ; see generally Guallpa v. Leon D. DeMatteis Constr. Corp., 117 A.D.3d 614, 616–617, 986 N.Y.S.2d 459 ; Paredes v. 1668 Realty Assoc., LLC, 110 A.D.3d 700, 702, 972 N.Y.S.2d 304 ; Conklin v. Triborough Bridge & Tunnel Auth., 49 A.D.3d 320, 321, 855 N.Y.S.2d 54 ). In any event, the information sought by plaintiff at a further deposition of defendant, such as statements given by defendant to her insurance carrier, was privileged (see Beaumont v. Smyth, 306 A.D.2d 921, 922, 762 N.Y.S.2d 317 ; Recant v. Harwood, 222 A.D.2d 372, 373–374, 635 N.Y.S.2d 231 ; Sofio v. Hughes, 148 A.D.2d 439, 440, 538 N.Y.S.2d 591 ; Matter of Weaver v. Waterville Knitting Mills, 78 A.D.2d 574, 574–575, 432 N.Y.S.2d 419 ). Furthermore, plaintiff failed to establish that the documents and photographs he sought were “essential to justify opposition” to the motion (CPLR 3212[f] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.