| Khan v Nelson |
| 2009 NY Slip Op 09621 [68 AD3d 1062] |
| December 22, 2009 |
| Appellate Division, Second Department |
| Mehrban Khan, Respondent, v Lionel Nelson et al.,Appellants, et al., Defendants. |
—[*1] A. Ali Yusaf, New York, N.Y. (Stephen A. Skor of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Lionel Nelson andAspirity Transportation Corp. appeal, as limited by their brief, (1) from so much of an order ofthe Supreme Court, Kings County (Starkey, J.), dated June 25, 2008, as granted the plaintiff'smotion for summary judgment on the issue of liability as against them, and (2) from so much ofan order of the same court dated October 22, 2008, as, upon reargument, adhered to its priordetermination and, in effect, denied that branch of their motion which was for leave to renew.
Ordered that the appeal from the order dated June 25, 2008 is dismissed, as that order wassuperseded by the order dated October 22, 2008, made upon reargument; and it is further,
Ordered that the order dated October 22, 2008 is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff allegedly sustained personal injuries when the vehicle in which he was apassenger collided at an intersection in Queens County with a vehicle operated by the defendantLionel Nelson and owned by the defendant Aspirity Transportation Corp. (hereinafter Aspirity).Only the road in which the Nelson vehicle was traveling as it approached the intersection wasgoverned by a stop sign.
The plaintiff established his entitlement to judgment as a matter of law by demonstrating,prima facie, that Nelson was negligent in failing to yield the right–of–way(see Vehicle and Traffic Law § 1142 [a]; Jaramillo v Torres, 60 AD3d734, 735 [2009]; Maliza v Puerto-Rican Transp. Corp., 50 AD3d 650, 651 [2008]). Inopposition, Nelson and Aspirity failed to submit evidence sufficient to raise a triable issue of fact(see Gorelik v Laidlaw Tr., Inc., 50 AD3d 739 [2008]). "The question of whether[Nelson] stopped at the stop sign is not dispositive, since the evidence established that he failedto yield even if he did stop" (McCain v Larosa, 41 AD3d 792, 793 [2007] [internalquotation marks omitted]; see Marcel v Chief Energy [*2]Corp., 38 AD3d 502, 503 [2007]; Morgan v Hachmann,9 AD3d 400 [2004]). Additionally, the contention of Nelson and Aspirity that the driver ofthe vehicle in which the plaintiff was a passenger was speeding was speculative (see Yelder vWalters, 64 AD3d 762, 765 [2009]; Batts v Page, 51 AD3d 833, 834 [2008];Meliarenne v Prisco, 9 AD3d 353, 354 [2004]). Therefore, the Supreme Court properlygranted the plaintiff's motion for summary judgment on the issue of liability as against Nelsonand Aspirity and, upon reargument, properly adhered to that determination.
A motion for leave to renew "shall be based upon new facts not offered on the prior motionthat would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; seeBarnett v Smith, 64 AD3d 669, 670 [2009]; Chernysheva v Pinchuck, 57 AD3d 936,937 [2008]; Dinten-Quiros v Brown, 49 AD3d 588, 589 [2008]; Madison v Tahir,45 AD3d 744 [2007]). The Supreme Court properly denied that branch of motion of Nelsonand Aspirity which was for leave to renew since the new evidence would not have warranteddenial of the plaintiff's motion (see Gentilella v Board of Educ. of Wantagh Union FreeSchool Dist., 60 AD3d 629, 630 [2009]; Parola, Gross & Marino, P.C. v Susskind,43 AD3d 1020, 1021 [2007]). Mastro, J.P., Florio, Balkin and Leventhal, JJ., concur.