| Furtow v Jenstro Enters., Inc. |
| 2010 NY Slip Op 05987 [75 AD3d 494] |
| July 6, 2010 |
| Appellate Division, Second Department |
| Erica Furtow, Respondent, v Jenstro Enterprises, Inc., etal., Defendants, and Allen Yam Ching, Appellant. |
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In an action to recover damages for personal injuries, the defendant Allen Yam Chingappeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County(Schack, J.), dated June 19, 2009, as granted that branch of the plaintiff's motion which was forsummary judgment on the issue of liability against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability againstthe defendant Allen Yam Ching is denied.
Contrary to the Supreme Court's determination, the affidavit submitted by the defendantAllen Yam Ching was in admissible form and should have been considered by the court inopposition to the plaintiff's motion for summary judgment. "There is no specific form of oathrequired in this State, other than that it be calculated to awaken the conscience and impress themind of the person taking it in accordance with his or her religious or ethical beliefs"(Feinman v Mennan Oil Co., 248 AD2d 503, 504 [1998]; see CPLR 2309 [b])."In addition, a notary, in the absence of a showing to the contrary, is presumed to have actedwithin his or her jurisdiction and to have carried out the duties required by law" (Feinman vMennan Oil Co., 248 AD2d at 504; see Collins v AA Truck Renting Corp., 209AD2d 363 [1994]). Here, Ching submitted an affidavit which recited that he was "duly sworn"and contained a jurat stating that the affidavit was "sworn to before" a notary public, who signedand stamped the document. On the record presented here, the form of the affidavit was adequate(see Sirico v F.G.G. Prods., Inc., 71AD3d 429 [2010]; Sparaco v Sparaco, 309 AD2d 1029, 1030 [2003]; Feinman vMennan Oil Co., 248 AD2d at 504; Collins v AA Truck Renting Corp., 209 AD2d at363).
In support of her motion for summary judgment on the issue of liability on the complaint, theplaintiff made a prima facie showing of negligence with respect to Ching, who was the operatorof a motor vehicle involved in a rear-end collision with the vehicle in front of it, driven by thedefendant Jesus A. Torres, in which the plaintiff was a passenger (see Carhuayano v J&R Hacking, 28AD3d 413, 414 [2006]). However, in opposition, Ching's affidavit raised a triable issue offact. Ching's averments with respect to the actions taken by Torres, if believed, provide anonnegligent explanation for Ching's rear-end collision with that vehicle (see Klopchin v Masri, 45 AD3d737 [2007]; Quezada vAquino, 38 AD3d 873 [2007]; Vehicle and Traffic Law § 1129 [a]; § 1163[d]). [*2]Accordingly, the Supreme Court should have deniedthat branch of the plaintiff's motion which was for summary judgment on the issue of liabilityinsofar as asserted against Ching. Skelos, J.P., Angiolillo, Dickerson and Leventhal, JJ., concur.