| Jones v Castro-Tinco |
| 2009 NY Slip Op 04200 [62 AD3d 957] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Lillian Jones, Respondent, v Juan Castro-Tinco,Appellant. |
—[*1] Law Office of Avi D. Caspi, PLLC (Arnold E. DiJoseph, P.C., New York, N.Y., of counsel),for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Jacobson, J.), dated July 15, 2008, which denied his motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when the vehicle she was driving in Brooklyn made a leftturn from Grove Street onto Wilson Avenue and was struck by the vehicle driven by thedefendant. On this motion for summary judgment dismissing the complaint, the defendantestablished his prima facie entitlement to judgment as a matter of law by demonstrating, throughthe deposition testimony of the parties, that the accident was caused by the plaintiff's failure toyield the right of way, as required by Vehicle and Traffic Law § 1142 (a) (see Exime v Williams, 45 AD3d633 [2007]; Gergis v Miccio,39 AD3d 468 [2007]; Laino vLucchese, 35 AD3d 672 [2006]; Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d 522, 523[2005]; McNamara v Fishkowitz,18 AD3d 721, 721-722 [2005]; Nolan v Mizrahi, 12 AD3d 430 [2004]). The plaintiff's assertionthat the deposition testimony should not have been considered by the Supreme Court is raised forthe first time on appeal and therefore is not properly before this Court (see Mariano v New York City Tr. Auth.,38 AD3d 236 [2007]; Sher v Scott, 203 AD2d 274 [1994]). In opposition to themotion, the plaintiff raised a triable issue of fact through her affidavit and that of an eyewitnessto the accident (see Fleming v Graham,34 AD3d 525 [2006], revd on other grounds 10 NY3d 296 [2008]; Caleminev Hobler, 263 AD2d 495 [1999]; Bogorad v Fitzpatrick, 38 AD2d 923 [1972],affd 31 NY2d 984 [1973]; seealso Lynch v Dobler Chevrolet, Inc., 49 AD3d 509, 510 [2008]). Therefore, theSupreme Court properly denied the motion. Spolzino, J.P., Covello, Angiolillo and Dickerson,JJ., concur.