| Ashif v Won Ok Lee |
| 2008 NY Slip Op 09936 [57 AD3d 700] |
| December 16, 2008 |
| Appellate Division, Second Department |
| Naveed Ashif, Plaintiff, v Won Ok Lee, Defendant andThird-Party Plaintiff-Respondent. Mohmmd Chowdhury et al., Third-Party Defendants-Appellants;Rehmat Khan et al., Third-Party Defendants-Respondents. |
—[*1] Stockschlaeder, McDonald & Sules, P.C., New York, N.Y. (Richard T. Sules and Gail S. Karanof counsel), for defendant third-party plaintiff-respondent.
In an action to recover damages for personal injuries, the third-party defendants MohmmdChowdhury and Domenico Mancini appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Hart, J.), dated October 18, 2007, as denied their cross motion forsummary judgment dismissing the third-party complaint and all cross claims insofar as asserted againstthem.
Ordered that the order is affirmed insofar as appealed from, with costs to the defendant third-partyplaintiff-respondent.
Contrary to the contention of the third-party defendants Mohmmd Chowdhury and DomenicoMancini (hereinafter the appellants), the unsigned deposition transcript of the third-party defendantRehmat Khan, which Khan submitted in support of his motion for summary judgment, and which wasrelied upon by the defendant third-party plaintiff Won Ok Lee in opposition to the appellants' crossmotion for summary judgment, was admissible under CPLR 3116 (a), since that transcript wassubmitted by the party deponent himself and therefore was adopted as accurate by Khan, as thedeponent (cf. McDonald v Mauss, 38AD3d 727 [2007]; Pina v Flik Intl.Corp., 25 AD3d 772, 773 [2006]; Scotto v Marra, 23 AD3d 543 [2005]). Similarly, the MV-104 accidentreport prepared by Khan was properly [*2]considered as a partyadmission (see Fox v Tedesco, 15 AD3d538 [2005]; Castellano v Citation Cab Corp., 35 AD2d 842 [1970]).
Upon consideration of all of the evidence in the record, we agree with the Supreme Court that thedefendant third-party plaintiff succeeded in raising triable issues of fact in opposition to the appellants'prima facie showing of entitlement to summary judgment. Since there are genuine questions as to themanner in which the accident occurred and whether the operation of the appellants' vehicle caused orcontributed to it, the appellants' cross motion for summary judgment was properly denied (see e.g. Carhuayano v J&R Hacking, 28AD3d 413 [2006]; Taveras v Amir,24 AD3d 655 [2005]). Mastro, J.P., Florio, Eng and Chambers, JJ., concur.