| Corwin v Heart Share Human Servs. of N.Y. |
| 2009 NY Slip Op 07575 [66 AD3d 814] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Concetta Corwin, Appellant, v Heart Share HumanServices of New York et al., Respondents. |
—[*1] Smith Mazure Director Wilkins Young & Yagerman, New York, N.Y. (Stacy I. Malinow ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Balter, J.), dated February 18, 2009, which denied her motionfor summary judgment on the issue of liability with leave to renew after the completion ofdiscovery.
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 established her prima facie entitlement to judgment as a matter of law on theissue of liability. The evidence submitted by the plaintiff demonstrated that the vehicle driven bythe defendant Sherri L. Jackson struck a vehicle in which the plaintiff was a passenger, whenJackson, faced with a stop sign in her direction, failed to yield the right-of-way to the vehicle inwhich the plaintiff was a passenger, in violation of Vehicle and Traffic Law § 1142 (a) (see Maliza v Puerto-Rican Transp. Corp.,50 AD3d 650 [2008]; Gergis vMiccio, 39 AD3d 468 [2007]; Arbizu v REM Transp., Inc., 20 AD3d 375 [2005]).
In opposition to the motion, the defendants failed to come forward with any evidence inadmissible form sufficient to raise a triable issue of fact (see Jaramillo v Torres, 60 AD3d 734 [2009]; Fenko v Mealing, 43 AD3d 856[2007]). The statement by Jackson recorded in the police accident report, to the effect that sheobserved the plaintiff's vehicle slow down in the intersection and assumed that the plaintiff wasallowing her to proceed, was insufficient to raise a triable issue of fact (see Laino v Lucchese, 35 AD3d672 [2006]; Marietta v Scelzo,29 AD3d 539 [2006]; Parisi v Mitchell, 280 AD2d 589 [2001]). The plaintiff'shusband, the driver with the right-of-way, was entitled to anticipate that Jackson would obeytraffic laws that required her to yield (see Platt v Wolman, 29 AD3d 663 [2006]; Bongiovi v Hoffman, 18 AD3d686 [2005]; Dileo v Barreca,16 AD3d 366 [2005]; Gillinder v Hemmes, 298 AD2d 493 [2002]).
Furthermore, contrary to the defendants' contention, the plaintiff's motion was not premature,as the defendants failed to offer an evidentiary basis to suggest that discovery might lead [*2]to relevant evidence and that facts essential to justify opposition tothe motion were exclusively within the knowledge and control of the plaintiff and the nonpartydriver (see Kimyagarov v Nixon TaxiCorp., 45 AD3d 736 [2007]). "[T]he defendants' purported need to conduct discoverydid not warrant denial of the motion since they already had personal knowledge of the relevantfacts" (Abramov v Miral Corp., 24AD3d 397, 398 [2005]; see Fenko v Mealing, 43 AD3d at 856). "The mere hope orspeculation that evidence sufficient to defeat a motion . . . may be uncoveredduring the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d759, 760 [2006]; see Marcel vChief Energy Corp., 38 AD3d 502 [2007]; Pina v Merolla, 34 AD3d 663 [2006]).
Consequently, the Supreme Court should have granted the plaintiff's motion for summaryjudgment on the issue of liability. Prudenti, P.J., Miller, Chambers and Roman, JJ., concur.