| Palmer v Horton |
| 2009 NY Slip Op 07002 [66 AD3d 1433] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Parris H. Palmer, Appellant, v Portia L. Horton et al.,Respondents. |
—[*1] The Long Firm, LLP, Buffalo (William A. Long, Jr., of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredSeptember 29, 2008 in a personal injury action. The order, insofar as appealed from, denied thatpart of the motion of plaintiff seeking partial summary judgment on the issue of negligence.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained when he was struck by a bus owned by defendant Laidlaw Transit, Inc. and operatedby defendant Portia L. Horton. Supreme Court properly denied that part of plaintiff's motionseeking partial summary judgment on the issue of negligence (see generally Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]). Even assuming, arguendo, thatplaintiff met his initial burden on the motion, we conclude on the record before us thatdefendants raised triable issues of fact whether any negligence on their part contributed to theaccident and whether plaintiff used reasonable care in proceeding into the intersection in whichthe accident occurred (see generally Thoma v Ronai, 82 NY2d 736, 737 [1993];Zuckerman, 49 NY2d at 562). Thus, there remains an issue of fact with regard to therespective negligence, if any, on the part of plaintiff and defendants. We reject plaintiff'scontention that defendants submitted Horton's affidavit in opposition to the motion in "anattempt to raise feigned issues of fact" (Dietzen v Aldi Inc. [New York], 57 AD3d 1514, 1514 [2008]). Inaddition, any inconsistency between the deposition testimony of Horton submitted in support ofthe motion and her affidavit presents a credibility issue to be resolved at trial (see id.;Knepka v Tallman, 278 AD2d 811 [2000]). Contrary to plaintiff's further contention, itcannot be said that the court should have disregarded the affidavit of defendants' accidentreconstruction expert as speculative (cf. Diaz v New York Downtown Hosp., 99 NY2d542, 544-545 [2002]). Present—Hurlbutt, J.P., Fahey, Green and Pine, JJ.