| Buchinger v Jazz Leasing Corp. |
| 2012 NY Slip Op 03794 [95 AD3d 1053] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Daniel Buchinger et al., Respondents, v Jazz Leasing Corp.et al., Appellants. |
—[*1] Lipsig, Shapey, Manus & Moverman, P.C. (Berson & Budashewitz, LLP, New York, N.Y.[Jeffrey A. Berson], of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Queens County (Siegal, J.), entered September 22, 2011, whichgranted the plaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
In support of their motion for summary judgment on the issue of liability, the plaintiffsdemonstrated that the plaintiff pedestrian, Daniel Buchinger, was walking within a crosswalk,with the pedestrian signal in his favor, when the car owned by the defendant Jazz Leasing Corp.,and operated by the defendant Marilyn A. Jones, failed to yield the right of way, and struck him.The plaintiffs further demonstrated that, in exercising due care, the plaintiff pedestrian hadlooked in all directions to check for approaching vehicles before he entered the intersection. Asthe Supreme Court correctly found, this proof was sufficient to establish the plaintiffs' primafacie entitlement to judgment as a matter of law on the issue of liability, including that theplaintiff pedestrian was free from comparative fault (see Rosenblatt v Venizelos, 49 AD3d 519 [2008]; see also Hamilton v King Tung Kong,93 AD3d 821 [2012]; Azeem vCava, 92 AD3d 821 [2012]; Arazashvilli v Executive Fleet Mgt., Corp., 90 AD3d 682 [2011];see generally Roman v A1 Limousine,Inc., 76 AD3d 552 [2010]).
In opposition, the defendants failed to raise a triable issue of fact. Jones's depositiontestimony was internally inconsistent and also contradicted her earlier admission, contained in apolice accident report. Further, the defendants made no effort to dispute the accuracy of Jones'sstatement in that police accident report (see Rosenblatt v Venizelos, 49 AD3d 519 [2008]). It appears thatthe inconsistency was designed to raise feigned factual issues in an effort to avoid theconsequences of the earlier admission contained in the police accident report (id.; see Nieves v JHH Transp., LLC, 40AD3d 1060, 1060 [2007]).
Moreover, the motion for summary judgment was not premature since the defendants failedto demonstrate that additional discovery may lead to relevant evidence or that the facts [*2]essential to justify opposition to the motion were exclusively withinthe knowledge and control of the plaintiffs (see Savage v Quinn, 91 AD3d 748, 750 [2012]; Arazashvilli v Executive Fleet Mgt.,Corp., 90 AD3d 682 [2011]; Martinez v Kreychmar, 84 AD3d 1037 [2011]). "The 'mere hope orspeculation that evidence sufficient to defeat a motion for summary judgment may be uncovered'by further discovery is an insufficient basis for denying the motion" (Woodard v Thomas, 77 AD3d738, 740 [2010], quoting Lopez vWS Distrib., Inc., 34 AD3d 759, 760 [2006]; see Arazashvilli v Executive Fleet Mgt., Corp., 90 AD3d 682[2011]; Martinez v Kreychmar, 84AD3d 1037 [2011]). Accordingly, the Supreme Court properly granted the plaintiffs' motionfor summary judgment on the issue of liability. Angiolillo, J.P., Dickerson, Hall and Cohen, JJ.,concur.