| Cavitch v Mateo |
| 2009 NY Slip Op 00186 [58 AD3d 592] |
| January 13, 2009 |
| Appellate Division, Second Department |
| Barbara Cavitch, Appellant, v Pedro A. Mateo et al.,Respondents. |
—[*1] Abamont & Associates (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger,Uniondale, N.Y. [Kathleen D. Foley], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered November 8, 2007, whichdenied her motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is granted.
The plaintiff pedestrian was crossing Ashford Avenue in the Village of Ardsley, when shewas struck by a motor vehicle operated by the defendant Sterling A. Mateo (hereinafter thedriver) and owned by the defendant Pedro A. Mateo. The plaintiff established her prima facieentitlement to judgment as a matter of law on the issue of liability by submitting evidenceshowing that the driver violated Vehicle and Traffic Law § 1151 (a) by failing to yield theright of way to her as she proceeded across the roadway of Ashford Avenue in a crosswalk. Theevidence submitted by the defendants in opposition failed to raise a triable issue of fact (seeCPLR 3212 [b]). Notably, the driver, in opposition to the motion, did not submit his ownaffidavit setting forth his version of how the accident occurred. Moreover, contrary to thedefendants' contention, the motion was not premature. The defendants failed to offer anevidentiary basis to show that discovery may lead to relevant evidence and that the factsessential to justify opposition to the motion were exclusively within the knowledge and controlof the plaintiff (see Gasis v City of NewYork, 35 AD3d 533 [2006]). The "mere hope or speculation that evidence sufficient todefeat a motion for summary judgment may be uncovered during the discovery process isinsufficient to deny the motion" (id. at [*2]534-535).Skelos, J.P., Dillon, McCarthy and Eng, JJ., concur.