| Frazier v Hertz Vehs., LLC |
| 2010 NY Slip Op 08063 [78 AD3d 767] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Immanuel Frazier, Respondent, v Hertz Vehicles, LLC, etal., Appellants. |
—[*1] Taddonio & Heed, P.C., Mineola, N.Y. (Gary M. Sunshine of counsel), for appellant HardyProsper. Andrew L. Weitz & Associates, P.C. (Pollack, Pollack, Isaac & DeCicco, New York, N.Y.[Brian J. Isaac and Jillian Rosen], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Hertz Vehicles, LLC,appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County(Rebolini, J.), dated January 27, 2009, as denied its motion for summary judgment dismissing thecomplaint insofar as asserted against it, and the defendant Hardy Prosper separately appeals, aslimited by his brief, from so much of the same order as denied his separate motion for summaryjudgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The defendants met their respective burdens of establishing their prima facie entitlement tojudgment as a matter of law by demonstrating that the vehicle driven by the defendant HardyProsper and owned by the defendant Hertz Vehicles, LLC (hereinafter Hertz), was making a leftturn from the center turning lane when it was struck in the rear by the plaintiff's vehicle (see Hughes v Cai, 55 AD3d 675[2008]; Mohan v Puthumana, 302 AD2d 437 [2003]). In opposition, the plaintiff, whohad no recollection of the accident, through the affidavit of a nonparty witness, raised triableissues of fact as to whether Prosper was negligent and thereby contributed to the happening of theaccident (see Oguzturk v General Elec.Co., 65 AD3d 1110 [2009]; Mohan v Puthumana, 302 AD2d 437 [2003]). Whilean affidavit submitted in reply by Hertz from that same nonparty witness contradicted thatwitness's earlier affidavit in several respects, that did not render him incredible as a matter oflaw, but raised an issue as to his credibility to be resolved by the factfinder (see Ferrante vAmerican Lung Assn., 90 NY2d 623, 631 [1997]; Rivera v State of New York, 19 AD3d 1030, 1031 [2005]).Accordingly, the separate motions of the defendants for summary judgment dismissing thecomplaint insofar as asserted against each of them were properly denied. Skelos, J.P., Balkin,Chambers and Austin, JJ., concur.