| Afghani v Metropolitan Suburban Bus Auth. |
| 2007 NY Slip Op 08394 [45 AD3d 511] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Farid Afghani, Appellant, v Metropolitan Suburban BusAuthority, Also Known as Metropolitan Transit Authority Long Island Bus Company, et al.,Respondents. |
—[*1] Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), forrespondents.
In an action to recover damages for wrongful death and personal injuries, the plaintiffappeals from an order of the Supreme Court, Nassau County (Robbins, J.), dated July 7, 2006,which granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law byproviding sufficient evidence that the infant decedent darted out from behind parked vehicles,directly into the path of the defendants' vehicle, leaving the defendant driver unable to avoidcontact (see Sheppeard v Murci, 306 AD2d 268, 269 [2003]). In opposition, the affidavitof Mahmood Afghani, the uncle of the infant decedent, sworn to almost five years after theaccident, in which he indicated for the first time and contrary to the plaintiff's depositiontestimony, that he had witnessed the subject accident, presented a feigned issue of fact as towhether the accident was proximately caused by the driver's negligence (see Gomez v Rodriguez, 31 AD3d497, 498 [2006]). Moreover, under these circumstances, where the plaintiff failed to makesome showing of negligence on the part of the defendants, the plaintiff was not entitled to invokethe Noseworthy doctrine (see Noseworthy v City of New York, 298 NY 76[1948]; Williams v Econ, 221 AD2d 429 [1995]). Miller, J.P., Ritter, Santucci andBalkin, JJ., concur.