| Fawcett v Suffolk Transp. Serv., Inc. |
| 2008 NY Slip Op 07614 [55 AD3d 535] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Liam Fawcett et al., Plaintiffs, v Suffolk Transportation Service,Inc., et al., Respondents, and Long Island Power Authority et al.,Appellants. |
—[*1] Faust Goetz Schenker & Blee LLP, New York, N.Y. (Dominic Boone of counsel), forrespondents.
In an action to recover damages for personal injuries, the defendants Long Island Power Authorityand Kevin G. Donnelly appeal, as limited by their notice of appeal and brief, from so much of an orderof the Supreme Court, Suffolk County (Baisley, J.), dated June 21, 2007, as granted that branch of thecross motion of the defendants Suffolk Transportation Service, Inc., Suffolk Transportation Systems,Inc., Suffolk Transportation Corp., and Obdulia Gonzalez which was, in effect, for summary judgmentdismissing the cross claims against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arose from a collision between a vehicle owned by the defendant Long Island PowerAuthority (hereinafter LIPA) and operated by the defendant Kevin G. Donnelly and a school busowned by the defendants Suffolk Transportation Service, Inc., Suffolk Transportation Systems, Inc.,and Suffolk Transportation Corp. (hereinafter collectively Suffolk Transportation) and operated by thedefendant Obdulia Gonzalez. The infant plaintiff, a passenger in the school bus, allegedly was injuredwhen a utility pole, which was on a trailer being towed by the LIPA vehicle, collided with the schoolbus. The plaintiffs moved, inter alia, for summary judgment against all defendants on the issue of liability,and Suffolk Transportation and Gonzalez cross-moved, among other things, in effect, for summaryjudgment dismissing the cross claims against them. The Supreme Court granted the plaintiffs' motionwith respect to LIPA and Donnelly, granted the cross motion, inter alia, in [*2]effect, for summary judgment dismissing the cross claims against SuffolkTransportation and Gonzalez, and ordered a damages trial as to LIPA and Donnelly. LIPA andDonnelly challenge only that portion of the order granting that branch of the cross motion of SuffolkTransportation and Gonzalez which was, in effect, for summary judgment dismissing the cross claimsagainst them.
In support of the cross motion, Gonzalez submitted an affidavit in which she averred that she was inthe right eastbound lane of Montauk Highway intending to continue through the intersection withVanderbilt Boulevard when, as she neared the intersection, the utility pole on the trailer "swung from theleft lane into the right lane" as the LIPA vehicle was making a left turn from the left turn lane of Montaukonto Vanderbilt. Contrary to the appellants' contentions, this evidence established that Gonzalez wasfaced with a cross-over emergency not of her own making and was sufficient to establish the primafacie entitlement of Suffolk Transportation and Gonzalez to judgment as a matter of law (see Koenig v Lee, 53 AD3d 567[2008]; Vitale v Levine, 44 AD3d935, 936 [2007]; Marsch v Catanzaro,40 AD3d 941, 942 [2007]; Cloughv Szymanski, 26 AD3d 894, 895 [2006]).
In opposition, the appellants were required to produce evidentiary proof in admissible formsufficient to establish the existence of material issues of fact (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Theyfailed to adduce any evidentiary proof, and their speculation that Gonzalez may have been inattentive orcould have avoided the accident was insufficient to raise a triable issue of fact (see Marsch vCatanzaro, 40 AD3d at 942; Gajjar vShah, 31 AD3d 377, 377-378 [2006]; Sheppeard v Murci, 306 AD2d 268, 269[2003]; Rumpler v Berkhan, 254 AD2d 261, 262-263 [1998]).
Moreover, to the extent that the appellants relied upon witness statements which the plaintiffssubmitted in support of their summary judgment motion, we note that those statements were consistentwith Gonzalez's affidavit and provided no basis to infer that further discovery would yield evidencefavorable to the appellants. Accordingly, the motion for summary judgment was not premature since theappellants failed to show that the discovery they sought would lead to relevant evidence that wouldraise a triable issue of fact (see UniversalExpress, Inc. v McKinnon, 37 AD3d 705 [2007]; Weintraub v Levine, 22 AD3d 664 [2005]). Spolzino, J.P., Ritter,Santucci and Carni, JJ., concur.