Opinion
8800 Index 26064/15E
03-26-2019
Giovanni G. THOMPSON, Plaintiff–Appellant, v. COCA–COLA BOTTLING CO., et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Goldberg Segalla, White Plains (Jill C. Owens of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Goldberg Segalla, White Plains (Jill C. Owens of counsel), for respondents.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered December 18, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff made a prima facie showing of negligence on the part of defendants by submitting a police report of the incident containing defendant Adorno's statement that he backed into plaintiff's vehicle, an admission against interest (see Cruz v. Skeritt , 140 A.D.3d 554, 554, 32 N.Y.S.3d 504 [1st Dept. 2016] ). Plaintiff also submitted his own affidavit, which stated, consistent with the police report, that his vehicle was stopped, and that defendant backed his tractor trailer into the front passenger side of plaintiff's vehicle as plaintiff continuously sounded his horn. Defendant's submissions in opposition to the motion were insufficient to raise a triable issue of fact, because defendant Adorno's affidavit contains a version of the facts which seems tailored to avoid the consequences of his prior admission to the police officer, is premised on speculation, and is inconsistent with the photographs of the damage to plaintiff's car ( Garzon–Victoria v. Okolo , 116 A.D.3d 558, 983 N.Y.S.2d 718 [1st Dept. 2014] ).
We note that plaintiff was not required to demonstrate his own freedom from comparative negligence in order to be entitled to summary judgment as to defendants' liability ( Rodriguez v. City of New York , 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ).
We have considered defendants' remaining contentions and find them unavailing.