| Maragos v Sakurai |
| 2012 NY Slip Op 01592 [92 AD3d 922] |
| February 28, 2012 |
| Appellate Division, Second Department |
| Michael Maragos, Plaintiff, v Tetsuya Sakurai, Appellant,et al., Defendant. |
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In an action to recover damages for personal injuries, the defendant Tetsuya Sakurai appealsfrom so much of an order of the Supreme Court, Queens County (Taylor, J.), dated August 2,2011, as denied his unopposed motion for summary judgment dismissing the second amendedcomplaint and all cross claims insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and the motion of the defendant Tetsuya Sakurai for summary judgmentdismissing the second amended complaint and all cross claims insofar as asserted against him isgranted.
CPLR 3212 (b) requires that a motion for summary judgment must be supported by, amongother things, an affidavit "by a person having knowledge of the facts." Notwithstanding thisrequirement, however, where a moving party supports a summary judgment motion with anattorney's affirmation, deposition testimony, and other proof, the failure to submit an affidavit bya person with knowledge of the facts is not necessarily fatal to the motion (see Alvarez vProspect Hosp., 68 NY2d 320, 325 [1986]; Olan v Farrell Lines, 64 NY2d 1092,1093 [1985]; Carniol v Carniol, 288 AD2d 421, 422 [2001]; Finnegan v Staten Is.R.T. Operating Auth., 251 AD2d 539, 540 [1998]; see also Fowler v New York City Tr.Auth., 245 AD2d 416 [1997]; Standard Fruit & S.S. Co., Div. of Castle & Cooke vRusso, 67 AD2d 970, 970 [1979]). Here, the motion of the defendant Tetsuya Sakurai(hereinafter the appellant) was supported by, among other things, an attorney's affirmation, all ofthe pleadings, and the transcripts of the deposition testimony of the three parties to this action.Contrary to the Supreme Court's determination, under the circumstances of this case, the absenceof an affidavit, while a defect in the appellant's motion, was not fatal to the motion (seeAlvarez v Prospect Hosp., 68 NY2d at 325; Olan v Farrell Lines, 64 NY2d at 1093;Carniol v Carniol, 288 AD2d at 422; Finnegan v Staten Is. R.T. Operating Auth.,251 AD2d at 540; see also Fowler v New York City Tr. Auth., 245 AD2d at 416;Standard Fruit & S.S. Co., Div. of Castle & Cooke v Russo, 67 AD2d at 970).
Turning to the merits, the operator of a motor vehicle has a duty to see what should be seenand to exercise reasonable care under the circumstances to avoid an accident (see Balducci vVelasquez, 92 AD3 — [2d Dept 2012]; Johnson v Phillips, 261 AD2d 269,271 [1999]). Here, in support of his summary judgment motion, the appellant made a prima facieshowing [*2]that he did not breach this duty in connection withthe subject accident. The appellant submitted evidence in the form of the parties' depositiontestimony establishing that he was decelerating as he was approaching his exit, and the vehicle infront of his was slowing down, when the plaintiff's vehicle, which had been struck in the rear bythe vehicle of the defendant Mark E. Gargano, was propelled into the appellant's vehicle, strikingit in the rear. Neither the plaintiff nor Gargano opposed the appellant's motion and, thus, notriable issue of fact was raised in opposition. Accordingly, the Supreme Court should havegranted the appellant's motion for summary judgment dismissing the second amended complaintand all cross claims insofar as asserted against him. Rivera, J.P., Dickerson, Chambers andAustin, JJ., concur.