| Flores v City of New York |
| 2009 NY Slip Op 07751 [66 AD3d 599] |
| October 29, 2009 |
| Appellate Division, First Department |
| Pedro A. Flores, Appellant, v City of New York et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), forrespondents.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered August 19, 2008,which, to the extent appealed from, denied plaintiff's motion for partial summary judgment onthe issue of liability, unanimously reversed, on the law, without costs, the motion granted and thematter remanded for further proceedings.
Plaintiff made a prima facie showing of negligence on the part of defendant Lang bysubmitting his affidavit indicating that the motor vehicle accident at issue occurred when Langpulled out of a parking position and into a lane of moving traffic (see Vehicle and TrafficLaw § 1128 [a]; Zummo vHolmes, 57 AD3d 366 [2008]; Calandra v Dishotsky, 244 AD2d 376, 377[1997]).
In opposition, defendants failed to raise an issue of fact. Defendant Lang never disputed inhis affidavit that the accident occurred when he pulled out of a parking spot into plaintiff's laneof traffic. In addition, while he asserted that he checked both his side view and rearview mirrorsbefore going forward, he never indicated whether he observed plaintiff's vehicle or whether heascertained that it was safe to proceed. Defendants also failed to raise an issue of fact as tocomparative negligence on the part of plaintiff. Indeed, there was no indication that plaintiff wasspeeding prior to the accident or that he contributed in any way to the accident (see Zummo v Holmes, 57 AD3d366 [2008]; Neryaev v Solon,6 AD3d 510, 511 [2004]). Lang's assertion in his affidavit that plaintiff's vehicle struck hisvehicle from behind on his driver's side wheel well, is not sufficient to raise a triable issue as towhether plaintiff was comparatively negligent. As plaintiff asserts, she had the right-of-way and"was entitled to anticipate that [defendant] would obey traffic laws which required [him] toyield" (Ward v Cox, 38 AD3d313, 314 [2007], quoting Jacino vSugerman, 10 AD3d 593, 595 [2004]). Defendant's argument that summary judgment ispremature because the record is devoid of deposition testimony or "other documentation. . . that might further illuminate the issues raised by the parties' affidavits" isunavailing. The mere hope that evidence sufficient to defeat a motion for summary judgment[*2]may be uncovered during the discovery process isinsufficient to deny such a motion (see Neryaev, 6 AD3d at 510-511).Concur—Gonzalez, P.J., Saxe, Catterson, McGuire and Acosta, JJ. [See 20 Misc3d 1140(A), 2008 NY Slip Op 51801(U).]