| Nesper v Goldmag Hacking Corp. |
| 2010 NY Slip Op 07693 [77 AD3d 598] |
| October 28, 2010 |
| Appellate Division, First Department |
| Catrina Nesper, Respondent, v Goldmag Hacking Corp. et al.,Appellants. |
—[*1] Marie R. Hodukavich, Peekskill, for respondent.
Order, Supreme Court, New York County (Paul Wooten, J.), entered December 9, 2009, which,to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment onthe issue of liability, unanimously reversed, on the law, without costs, and the motion denied.
Although plaintiff made a prima facie showing of entitlement to summary judgment on the issue ofliability by supplying an affidavit stating that she was struck by defendant's vehicle while crossing astreet in a crosswalk with the green light, defendant met his burden of establishing the existence ofmaterial issues of fact requiring a trial by stating in his affidavit that his vehicle never struck plaintiff(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant's affidavit did notcontradict his statement to the police so as to warrant rejecting it as a belated attempt to avoid theconsequences of an earlier admission. Accordingly, there was no basis for the grant of partial summaryjudgment to plaintiff. Concur—Saxe, J.P., Acosta, Freedman, Richter and Abdus-Salaam, JJ.