Summary
granting summary judgment to plaintiff where affidavit made clear that defendant opened door into moving traffic without time for plaintiff to avoid accident; defendant's failed to submit evidence sufficient to raise an issue of fact as to whether defendant driver violated VTL § 1214 or whether plaintiff could have avoided the accident
Summary of this case from Reyes v. United StatesOpinion
06-07-2016
Jeffrey TAVAREZ, Plaintiff–Respondent, v. Felix Manuel Castillo HERRASME, et al., Defendants–Appellants.
Burns, Russo, Tamigi & Reardon, LLP, Garden City (Jeffrey M. Burkhoff of counsel), for appellants. William Schwitzer & Associates, P.C., New York (Daniel A. Berger of counsel), for respondent.
Burns, Russo, Tamigi & Reardon, LLP, Garden City (Jeffrey M. Burkhoff of counsel), for appellants.
William Schwitzer & Associates, P.C., New York (Daniel A. Berger of counsel), for respondent.
Opinion
Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered January 13, 2015, which granted plaintiff's motion for partial summary judgment on liability, unanimously affirmed, without costs.
The evidence plaintiff submitted in support of his motion for summary judgment established his prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Plaintiff's affidavit stating that the rear door of defendants' vehicle “opened without warning” and struck the left side of his vehicle established that defendant driver violated Vehicle and Traffic Law (VTL) § 1214, and that plaintiff was unable to avoid the accident (see Montesinos v. Cote, 46 A.D.3d 774, 848 N.Y.S.2d 329 [2d Dept.2007] ; Williams v. Persaud, 19 A.D.3d 686, 686–687, 798 N.Y.S.2d 495 [2d Dept.2005] ). Plaintiff also submitted an affidavit of the police officer who prepared the accident report, which contained defendant driver's admissions that the rear door swung open wider than normal, causing plaintiff to strike it, and his statement that the door was blown open by the wind.
In opposition, defendants failed to submit evidence sufficient to raise an issue of fact as to whether defendant driver violated VTL § 1214, or whether plaintiff could have avoided the accident.
Summary judgment was not granted prematurely, since defendants did not show that discovery was necessary to avoid summary judgment (see CPLR 3212[f] ). The “mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient” to deny such a motion (Flores v. City of New York, 66 A.D.3d 599, 888 N.Y.S.2d 27 [1st Dept.2009] ; Neryaev v. Solon, 6 A.D.3d 510, 510, 775 N.Y.S.2d 348 [2d Dept.2004] ).
FRIEDMAN, J.P., RENWICK, ANDRIAS, GISCHE, WEBBER, JJ., concur.