| Kahan v Spira |
| 2011 NY Slip Op 07611 [88 AD3d 964] |
| October 25, 2011 |
| Appellate Division, Second Department |
| Chaya Kahan, as Administrator of the Estate of Leib Blum,Deceased, Respondent, v David Spira, Appellant. |
—[*1] Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Saitta, J.), dated July 1, 2010, which granted the plaintiff'smotion, inter alia, for leave to serve an amended complaint and denied the defendant's crossmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On December 23, 2007, the plaintiff's decedent, Leib Blum (hereinafter the decedent),allegedly was injured while walking along 18th Avenue in Brooklyn when he was struck andknocked to the ground by the defendant's vehicle as it was backing out of 51st Street.
On January 17, 2008, the instant action was commenced, and issue was joined by service ofthe defendant's answer dated February 12, 2008. On February 25, 2008, the decedent, who was92 years old, passed away. On May 11, 2009, letters of administration were granted to theplaintiff.
On October 27, 2009, the plaintiff moved, inter alia, for leave to serve an amended complaintto add a cause of action for wrongful death. The defendant opposed the motion and cross-movedfor summary judgment dismissing the complaint, contending that his vehicle never made contactwith the decedent, who fell because he was frightened or startled by the defendant's vehicle as itwas backing up and lost his balance. The Supreme Court granted the plaintiff's motion, amongother things, for leave to amend the complaint, and denied the defendant's cross motion forsummary judgment. The defendant appeals. We affirm.
The Supreme Court properly determined that the plaintiff should be granted leave to amendthe complaint, as the proposed amended complaint sufficiently alleged that the defendant'snegligence caused the decedent to suffer injuries that ultimately resulted in his death.Accordingly, the proposed pleading was neither "palpably insufficient nor patently devoid ofmerit" (Lucido v Mancuso, 49AD3d 220, 232 [2008]; seeJablonski v Jakaitis, 85 AD3d 969 [2011]; Truebright Co., Ltd. v Lester, 84 AD3d 1065 [2011]). Contrary tothe defendant's contention, no assessment of the ultimate merit of the claim needed to be madeon the plaintiff's motion (see Lucido vMancuso, 49 AD3d 220 [2008]; Jablonski [*2]v Jakaitis, 85 AD3d969 [2011]; Truebright Co., Ltd. vLester, 84 AD3d 1065 [2011]). Moreover, the defendant's reliance on CPLR 210 (a) tosupport the contention that any claim for wrongful death is time-barred is without merit. Thestatutory tolling provision contained in CPLR 210 (a) is inapplicable to a cause of action allegingwrongful death, which accrues only upon the death of a decedent (see CPLR 210 [a];EPTL 5-4.1 [1]). Accordingly, the Supreme Court properly granted the plaintiff's motion, interalia, for leave to serve an amended complaint.
The Supreme Court also properly denied the defendant's cross motion for summary judgmentdismissing the complaint, since the defendant failed to meet his prima facie burden ofestablishing his entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). The defendant failed to establish, through the submissionof admissible evidence, that his vehicle did not strike the decedent, knocking him to the ground.The proffered deposition transcript of a nonparty witness submitted by the defendant wasinadmissible because it was not executed and there was no proof that it had previously beenforwarded to the nonparty witness for review (see CPLR 3116; see also Moffett v Gerardi, 75 AD3d496 [2010]; Marmer v IF USAExpress, Inc., 73 AD3d 868 [2010]; Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901[2008]). Furthermore, the conclusory assertions in the defendant's affidavit were insufficient todemonstrate the absence of any triable issues of fact (see Alvarez v Prospect Hosp., 68NY2d at 324). Resolving questions of credibility, determining the accuracy of witnesses, andreconciling the testimony of witnesses are for the trier of fact (see Republic Long Is., Inc. v Andrew J.Vanacore, Inc., 29 AD3d 665 [2006]; Harty v Kornish Distribs., 119 AD2d 729[1986]). Accordingly, the Supreme Court properly denied the defendant's cross motion, withoutregard to the sufficiency of the opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]).
The defendant's remaining contentions are without merit. Dillon, J.P., Balkin, Eng andCohen, JJ., concur.