| Colandrea v Choku |
| 2012 NY Slip Op 03127 [94 AD3d 1034] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Marc Colandrea, Respondent, v Tenzin Choku et al.,Appellants. |
—[*1] Berson & Budashewitz, LLP, New York, N.Y. (Jeffrey A. Berson of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal (1) from an orderof the Supreme Court, Kings County (Lewis, J.), dated April 8, 2011, which granted theplaintiff's motion for summary judgment on the issue of liability, and (2), as limited by theirbrief, from so much of an order of the same court dated June 3, 2011, as denied those branches oftheir motion which were to (a) vacate the note of issue and certificate of readiness for trial, (b)strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a deposition andsubmit to an independent physical examination.
Ordered that the order dated April 8, 2011, is affirmed, without costs or disbursements; and itis further,
Ordered that the order dated June 3, 2011, is reversed insofar as appealed from, on the factsand in the exercise of discretion, without costs or disbursements, and those branches of thedefendants' motion which were to (a) vacate the note of issue and certificate of readiness for trial,(b) strike the matter from the trial calendar, and (c) direct the plaintiff to appear for a depositionand submit to an independent physical examination are granted.
On July 8, 2010, the plaintiff was operating his motorcycle northbound on West Street inManhattan. As he approached the intersection of West Street and North Moore Street, with agreen traffic light, the plaintiff attempted to go through the intersection and was struck by anautomobile operated by the defendant Tenzin Choku and owned by the defendant I and I CabCorp. Choku had been traveling southbound on West Street when, as he attempted to make eithera U-turn or a left turn at the intersection, he entered the northbound lane of West Street andcollided with the plaintiff.
After issue was joined, but prior to the completion of discovery, the plaintiff moved forsummary judgment on the issue of liability. The defendants opposed the motion. In an order[*2]dated April 8, 2011, the Supreme Court granted the motion,and the defendants appeal from that order. Thereafter, the defendants moved, inter alia, to (a)vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trialcalendar, and (c) direct the plaintiff to appear for a deposition and submit to an independentphysical examination. In an order dated June 3, 2011, the Supreme Court, among other things,denied those branches of the defendants' motion, and the defendants also appeal from that part ofthe order.
In support of his motion for summary judgment on the issue of liability, the plaintiff made aprima facie showing that he had the right of way, that he was entitled to anticipate that Chokuwould obey the traffic laws which required Choku to yield, and that Choku's failure to yield wasthe proximate cause of the accident (seeAhern v Lanaia, 85 AD3d 696 [2011]; Vainer v DiSalvo, 79 AD3d 1023 [2010]; Loch v Garber, 69 AD3d 814[2010]; Palomo v Pozzi, 57 AD3d498 [2008]). The plaintiff also made a prima facie showing that he was free of comparativefault (see Bonilla v Gutierrez, 81AD3d 581 [2011]; Roman v A1Limousine, Inc., 76 AD3d 552 [2010]).
In opposition, the defendants failed to raise a triable issue of fact as to whether the plaintiffwas at fault in the happening of the accident (see Vainer v DiSalvo, 79 AD3d at 1024; Yelder v Walters, 64 AD3d 762,764 [2009]). To the extent the defendants suggest the possibility that the accident might havebeen avoided, or that the plaintiff may have been speeding, such assertions, upon this record, arecompletely speculative and inadequate to withstand summary judgment (see Socci v Levy, 90 AD3d 1020[2011]; Loch v Garber, 69 AD3d at 816; Berner v Koegel, 31 AD3d 591, 592 [2006]; Jacino v Sugerman, 10 AD3d 593,595 [2004]). Accordingly, the Supreme Court properly granted the plaintiff's motion forsummary judgment on the issue of liability.
The Supreme Court improvidently exercised its discretion, however, in denying thosebranches of the defendants' timely motion which were to (a) vacate the note of issue andcertificate of readiness for trial, (b) strike the matter from the trial calendar, and (c) direct theplaintiff to appear for a deposition and submit to an independent physical examination. "Whilediscovery determinations rest within the sound discretion of the trial court, the AppellateDivision is vested with a corresponding power to substitute its own discretion for that of the trialcourt, even in the absence of abuse" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740,745 [2000]). Here, although the defendants may have waived their right to conduct a depositionand independent physical examination of the plaintiff by their failure to schedule and completethe deposition and examination by the dates set forth in a preliminary conference order, thecircumstances of this case warranted relieving the defendants of the waiver, particularly sincethere was no prejudice to the plaintiff (see Barbosa v Capolarello, 52 AD3d 629 [2008]; High Point of Hartsdale I Condominium vAOI Constr., Inc., 31 AD3d 711 [2006]; Venia v 18-05 215th St. Owners, 288AD2d 463 [2001]; Poltorak v Blyakham, 225 AD2d 600 [1996]). Accordingly, theSupreme Court should have granted those branches of the defendants' motion which were to (a)vacate the note of issue and certificate of readiness for trial, (b) strike the matter from the trialcalendar, and (c) direct the plaintiff to appear for a deposition and submit to an independentphysical examination. Dillon, J.P., Angiolillo, Belen and Cohen, JJ., concur.