Opinion
5740 Index 302228/14
02-15-2018
Anthony THOMAS, Plaintiff–Respondent, v. Elvy GONZALEZ, Defendant–Appellant.
Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant. Michael B. Palillo, P.C., New York (Michael B. Palillo of counsel), for respondent.
Brand, Glick & Brand, P.C., Garden City (Peter M. Khrinenko of counsel), for appellant.
Michael B. Palillo, P.C., New York (Michael B. Palillo of counsel), for respondent.
Friedman, J.P., Tom, Mazzarelli, Singh, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about May 5, 2017, which, to the extent appealed from, in this action for personal injuries sustained when plaintiff bicyclist was struck by a motor vehicle driven by defendant, denied defendant's motion to renew his motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion for renewal granted and, upon renewal, defendant's motion for summary judgment granted. The Clerk is directed to enter judgment accordingly.
Defendant taxi driver demonstrated that the alleged new facts uncovered in a deposition conducted after the decision on the original motion would change the prior determination of the motion court to deny his summary judgment motion (see CPLR 2221[e][2] ; 212 Inv. Corp. v. Kaplan, 44 A.D.3d 332, 333, 843 N.Y.S.2d 222 [1st Dept. 2007] ; Montero v. Elrac, Inc., 16 A.D.3d 284, 792 N.Y.S.2d 405 [1st Dept. 2005] ). Following the determination of the original motion, plaintiff's main fact witness was deposed and gave testimony materially inconsistent with his sworn statements in the affidavit plaintiff had submitted in opposition to the original motion. The conclusion of plaintiff's expert that defendant had been at fault in the subject accident was based on the factual account given in the witness's affidavit. Accordingly, defendant was entitled to renewal based on the witness's deposition testimony discrediting his earlier affidavit and, upon renewal, to summary judgment dismissing the complaint.