| Hill v Ackall |
| 2010 NY Slip Op 02098 [71 AD3d 829] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Tawana Hill, Plaintiff, v Afaf N. Ackall, Appellant, andMetropolitan Transit Authority Bus Company, Respondent. |
—[*1] Marulli, Lindenbaum, Edelman & Tomaszewski, LLP, New York, N.Y. (Rita Renjen andRichard O. Mannarino of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Afaf N. Ackall appealsfrom an order of the Supreme Court, Queens County (Grays, J.), dated February 6, 2009, whichdenied her motion for summary judgment dismissing the complaint insofar as asserted againsther.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantAfaf N. Ackall for summary judgment dismissing the complaint insofar as asserted against her isgranted.
The Supreme Court should have granted the motion of the defendant Afaf N. Ackall forsummary judgment dismissing the complaint insofar asserted against her. Ackall made a primafacie showing of her entitlement to judgment as a matter of law by submitting her affidavit, inwhich she averred that her vehicle had been stopped at a red light behind the plaintiff's vehiclefor approximately one minute, when a bus owned by the defendant Metropolitan TransitAuthority Bus Company (hereinafter MTA Bus) struck the rear of her vehicle, causing hervehicle to strike the plaintiff's vehicle (see Staton v Ilic, 69 AD3d 606 [2010]; Garner v Chevalier Transp. Corp., 58AD3d 802 [2009]; Kimyagarov vNixon Taxi Corp., 45 AD3d 736 [2007]). MTA Bus opposed the motion on the groundsthat Ackall did not establish her prima facie entitlement to judgment as a matter of law, and thatthe motion was premature. However, MTA Bus did not submit any evidence with respect to themerits in opposition to the motion and, thus, failed to raise a triable issue of fact (see Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to the contention of MTA Bus, themotion was not premature (see CPLR 3212 [f]; Staton v Ilic, 69 AD3d 606 [2010]; Garner v Chevalier Transp.Corp., 58 AD3d at 802). MTA Bus failed to offer an evidentiary basis to suggest thatdiscovery may lead to relevant evidence or that facts essential to opposing the motion wereexclusively within the knowledge and control of the plaintiff (see Kimyagarov v Nixon TaxiCorp., 45 AD3d at 737; Lopez vWS Distrib., Inc., 34 AD3d 759, 760 [2006]). Mastro, J.P., Leventhal, Lott and Austin,JJ., concur.