| Morales v Morales |
| 2008 NY Slip Op 07183 [55 AD3d 306] |
| October 2, 2008 |
| Appellate Division, First Department |
| Nubia Jasmine Morales, Appellant, v Pedro P. Morales,Defendant, and Jamal Pollard et al., Respondents. (And AnotherAction.) |
—[*1] Burke Lipton McCarthy & Gordon, White Plains (Kevin T. D'Arcy of counsel), for JamalPollard and Professional Transportation Corp., respondents. Paul F. McAloon, P.C., New York, for Sandoval respondents.
Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about October 4,2007, which, insofar as appealed from in this action for personal injuries arising out of amultivehicle accident, granted the motion of defendants Everett Sandoval and Eric M. Sandovaland the cross motion of defendants Jamal Pollard and Professional Transportation Corp. forsummary judgment dismissing plaintiff Nubia Morales' complaint (Action No. 1, index No.15748/04) and all cross claims as against them, unanimously affirmed, without costs.
Defendants satisfied their prima facie burden of entitlement to summary judgment based onthe deposition testimony of Eric Sandoval and Pollard, who each stated that, due to a laneclosure, they came to a complete stop before the vehicle in which plaintiff was a passenger anddriven by plaintiff's father Pedro Morales struck Pollard's van, thereby propelling the van forwardinto Sandoval's car (see Sorge v NorthStar Waste, LLC, 48 AD3d 386 [2008]; Agramonte v City of New York, 288AD2d 75 [2001]). In opposition, plaintiff failed to provide a nonnegligent explanation for therear-end collision sufficient to establish an issue of fact regarding the negligence of Sandoval andPollard (see Ferguson v Honda LeaseTrust, 34 AD3d 356 [2006]). The Morales' speculative claims of hearing a noise and thatPollard's van had struck Sandoval's car before they collided with Pollard's van, are insufficient toovercome the clear testimony from the front two drivers that both vehicles were at a stop prior tobeing hit in the rear (see Macauley vELRAC, Inc., 6 AD3d 584 [2004]). Furthermore, plaintiff's affidavit submitted inopposition to the motion and cross motion contradicts her earlier deposition testimony and wasproperly disregarded as tailored to avoid the consequences of that earlier testimony (see Smith v Costco Wholesale [*2]Corp., 50 AD3d 499, 501 [2008]; Israel v Fairharbor Owners, Inc., 20AD3d 392 [2005]). Concur—Lippman, P.J., Gonzalez, Nardelli, Acosta andDeGrasse, JJ.