| Coleman v Maclas |
| 2009 NY Slip Op 03100 [61 AD3d 569] |
| April 23, 2009 |
| Appellate Division, First Department |
| Pierette Coleman, Appellant, v Leoncio Maclas et al.,Respondents. |
—[*1] Richard T. Lau & Associates, Jericho (Keith E. Ford of counsel), for respondents.
Judgment, Supreme Court, Bronx County (Nelson S. Roman, J.), entered April 9, 2008,denying plaintiff's motion for partial summary judgment on the issue of liability, grantingdefendants' cross motion for summary judgment and dismissing the complaint, unanimouslyaffirmed, without costs. Appeal from order, same court and Justice entered March 20, 2008,unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
Plaintiff, a passenger in a vehicle, seeks damages from defendants for injuries sustained in anaccident in which that vehicle collided at an intersection with a vehicle driven by defendantFresia Maclas.
The court properly denied plaintiff's motion for partial summary judgment. In support of herclaim, plaintiff submitted her affidavit that was wholly conclusory as to defendants' negligenceand failed to meet her prima facie burden establishing negligence on the part of defendants (see JMD Holding Corp. v Congress Fin.Corp., 4 NY3d 373, 384 [2005]; Zuckerman v City of New York, 49 NY2d 557,562 [1980]). The motion court properly disregarded the uncertified police report andunauthenticated photographs as they were inadmissible hearsay (see Figueroa v Luna,281 AD2d 204, 206 [2001]). Further, the affirmation by plaintiff's counsel, who had no personalknowledge of the accident, was not admissible evidence and, therefore, was insufficient toestablish defendants' negligence (see Johnson v Phillips, 261 AD2d 269, 270-271[1999]).
Defendants met their initial burden of establishing their entitlement to summary judgment bysubmitting evidence that defendant Fresia Maclas was confronted with an emergency (seeRivera v New York City Tr. Auth., 77 NY2d 322, 326-327 [1991]). Fresia Maclas averredthat she was confronted with an emergency situation when the vehicle in which plaintiff was apassenger veered into her lane of travel, leaving her with no alternative but to move as far to theright as possible to avoid the collision, but was hampered in her efforts due to the location of afence near her vehicle. In opposition, plaintiff failed to raise an issue of fact (seeZuckerman, 49 NY2d at 562).[*2]
We have considered plaintiff's remaining contentions andfind them unavailing. Concur—Gonzalez, P.J., Mazzarelli, Saxe, Moskowitz and Richter,JJ.