| Pandey v Parikh |
| 2008 NY Slip Op 09766 [57 AD3d 634] |
| December 9, 2008 |
| Appellate Division, Second Department |
| mRupal Pandey, Appellant, v Vinaykumar C. Parikh et al.,Respondents. |
—[*1] Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., of counsel), forrespondent Subash K. Kariyil.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Queens County (Taylor, J.), entered July 18, 2007, which denied her motion forsummary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs payable by the respondent Subash K.Kariyil, and the plaintiff's motion for summary judgment on the issue of liability is granted.
The plaintiff was riding in the rear seat of a minivan, owned by the defendant Vinaykumar C. Parikh(who was riding in the front passenger seat) and driven by the defendant Subash K. Kariyil, whenKariyil lost control, causing the vehicle to roll over and strike a guard rail. The Supreme Court deniedthe plaintiff's motion for summary judgment on the issue of liability because the plaintiff did not establishthat Kariyil was speeding.
"An innocent passenger . . . who, in support of [his or] her motion for summaryjudgment, submits evidence that the accident resulted from the driver losing control of the vehicle, shiftsthe burden to the driver to come forward with an exculpatory explanation" (Siegel v Terrusa,222 AD2d 428, 428-429 [1995]). Here, the plaintiff's affidavit, in which she described the accident,was sufficient to establish her prima facie entitlement to judgment as a matter of law on the issue ofliability and, contrary to the Supreme Court's determination, she was not required to present evidencethat the [*2]driver was speeding (see e.g. Felberbaum v Weinberger, 40 AD3d 808 [2007]; Dudley vFord Credit Titling Trust, 307 AD2d 911 [2003]; MacIntosh v August Ambulette Serv.,271 AD2d 661 [2000]; Siegel v Terrusa, 222 AD2d at 428-429).
The owner, Parikh, did not oppose the plaintiff's motion. The evidence submitted in opposition bythe driver, Kariyil, was insufficient to raise a triable issue of fact as to his negligence. "[M]ereconclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient [to raise atriable issue of fact]" (Zuckerman v City of New York., 49 NY2d 557, 562 [1980]). Parikh'sdeposition testimony that a white car traveling at a high rate of speed passed the minivan at about thetime of the accident does not support an inference that Kariyil was confronted with an emergencysituation (see generally Rivera v New York City Tr. Auth., 77 NY2d 322, 326-327 [1991]).Notably, Parikh did not know if Kariyil applied the brakes, if he was attempting to slow the minivandown to avoid the white car, or the distance between the minivan and the white car when it reenteredthe minivan's lane. In addition, letters written by Kariyil and Parikh to an insurance company describingan alternate cause of the accident were inadmissible hearsay and are, therefore, insufficient to defeat theplaintiff's motion (see Johnson v Phillips, 261 AD2d 269, 270 [1999]).
Accordingly, the plaintiff's motion for summary judgment on the issue of liability should have beengranted. Spolzino, J.P., Covello, Angiolillo and Chambers, JJ., concur.