| Imamkhodjaev v Kartvelishvili |
| 2007 NY Slip Op 07402 [44 AD3d 619] |
| October 2, 2007 |
| Appellate Division, Second Department |
| Alisher Imamkhodjaev et al., Respondents, v N.Kartvelishvili, Appellant. |
—[*1] Taller & Wizman, P.C., Forest Hills, N.Y. (Y. David Taller of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals froman order of the Supreme Court, Kings County (Bunyan, J.), dated March 7, 2007, which grantedthe plaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the motion is denied.
This action arose from a collision between a vehicle operated by the defendant and a vehicleoperated by the plaintiff Alisher Imamkhodjaev, in which the plaintiff Yana Khabinskaya was apassenger. In support of their motion for summary judgment on the issue of liability, theplaintiffs submitted, inter alia, an affidavit in which Imamkhodjaev averred that he was stoppedat a red light when the defendant "suddenly and unexpectedly backed up into [Imamkhodjaev's]vehicle," causing the rear of the defendant's vehicle to collide with the front of Imamkhodjaev'svehicle. The plaintiffs also submitted a police accident report which contained a handwrittennotation indicating that the defendant "states he was backing up [and] he didn't see [vehicle] #1."In opposition to the plaintiffs' motion, the defendant submitted an affidavit in which he averredthat, at the time of the accident, he was stopped at a red light when his vehicle was struck in therear by Imamkhodjaev's vehicle. The defendant denied that he backed into Imamkhodjaev'svehicle, and further averred that "at no time did I ever tell the police that I had backed into theplaintiff [*2]Imamkhodjaev's car." The Supreme Court,concluding that the defendant's affidavit constituted a belated attempt to avoid the consequencesof an earlier admission, granted the plaintiffs' motion for summary judgment on the issue ofliability. We reverse.
In granting the plaintiffs' motion, the Supreme Court relied upon this Court's decision in Abramov v Miral Corp. (24 AD3d397 [2005]). In that case, the version of the relevant events set forth in the defendant'saffidavit opposing the plaintiff's motion for summary judgment contradicted a statement which,according to a police accident report, the defendant made at the scene of the accident. This Courtheld that the defendant's affidavit raised only a feigned issue of fact, intended solely to avoid theconsequences of his earlier admission, and thus was insufficient to defeat the plaintiff's motion.
In Abramov, the defendant did not dispute the fact that he had made the admissionattributed to him in the police report. In the present case, by contrast, the defendant has deniedmaking the statement reflected in the police report, i.e., that he backed into Imamkhodjaev'svehicle. The credibility of the defendant's assertion that he did not make the statement attributedto him is for a jury to determine; it is not incredible as a matter of law (see Ramos v Rojas, 37 AD3d 291[2007]). Accordingly, the defendant raised a triable issue of fact, precluding summary judgmenton the issue of his liability (see Card vBrown, 43 AD3d 594 [2007]; Ramos v Rojas, 37 AD3d 291 [2007]). Prudenti, P.J., Santucci,Fisher and Angiolillo, JJ., concur.