| Strocchia v City of New York |
| 2010 NY Slip Op 01474 [70 AD3d 926] |
| February 16, 2010 |
| Appellate Division, Second Department |
| Vittorio Strocchia et al., Respondents, v City of New Yorket al., Defendants, and Marilena Popa, Appellant. |
—[*1] Greenstein & Milbauer, LLP, New York, N.Y. (Andrew Bokar of counsel), for respondents. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for defendants City of New York and EugeneMcNeil.
In an action to recover damages for personal injuries, etc., the defendant Marilena Popaappeals from an order of the Supreme Court, Queens County (Flug, J.), dated January 6, 2009,which denied her motion for summary judgment dismissing the complaint insofar as assertedagainst her.
Ordered that the order is reversed, on the law, with costs payable by the respondents, and theappellant's motion for summary judgment dismissing the complaint insofar as asserted againsther is granted.
This action arises from a two-car motor vehicle accident, in which a truck owned by thedefendant City of New York, and operated by the defendant Eugene McNeil, which was exitinga driveway in the Maspeth section of Queens, collided with a vehicle operated by the defendantMarilena Popa (hereinafter the appellant), in which her grandson, the infant plaintiff VittorioStrocchia was riding.
After joinder of issue, the appellant moved for summary judgment dismissing the complaintinsofar as asserted against her. The appellant established her prima facie entitlement to judgmentas a matter of law by submitting proof that the defendant McNeil violated Vehicle and TrafficLaw § 1143 (failure to yield the right-of-way) (see Sanabria v Paduch, 61 AD3d839 [2009]). In opposition, no triable issue of fact was raised (see CPLR 3212 [b]). Theappellant's acknowledgment at her deposition that she did not see the truck being operated byMcNeil until the impact was insufficient to raise a triable issue of fact, and was, therefore,insufficient to defeat the motion for summary judgment (see Gravina v Wakschal, 255AD2d 291 [1998]). Furthermore, McNeil's conclusory testimony that the appellant's car "wasmoving very fast" was unsupported by any evidence and speculative, given his other testimonythat he saw the appellant's motor vehicle for the first time immediately prior to the impact(see Batts v Page, 51 AD3d 833 [2008]).[*2]
The remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the appellant's motion for summaryjudgment dismissing the complaint insofar as asserted against her. Santucci, J.P., Dickerson,Chambers and Sgroi, JJ., concur.