| Gagliardo v Orton |
| 2012 NY Slip Op 04132 [95 AD3d 1275] |
| May 30, 2012 |
| Appellate Division, Second Department |
| Peter C. Gagliardo, Appellant, v Krista Orton, Defendant,and Omar Hussain et al., Respondents. |
—[*1] Kornfeld, Rew, Newman & Simeone, Suffern, N.Y. (William S. Badura of counsel), forrespondents.
In a consolidated action to recover damages for personal injuries, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Dutchess County (Pagones,J.), dated May 9, 2011, as granted that branch of the motion of the defendants Omar Hussain,Tanveer Hussain, and Ruvina Hussain which was for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendants Omar Hussain, Tanveer Hussain, and Ruvina Hussainwhich was for summary judgment dismissing the complaint insofar as asserted against them isdenied.
In support of that branch of the motion of the defendants Omar Hussain, Tanveer Hussain,and Ruvina Hussain (hereinafter collectively the respondents) which was for summary judgmentdismissing the complaint insofar as asserted against them, the respondents relied on excerpts ofthe transcripts of the depositions, among others, the plaintiff and Omar Hussain, which containedconflicting testimony as to the facts surrounding the accident, including whether Omar Hussainviolated Vehicle and Traffic Law §§ 1141 and 1163, and, if so, whether thoseviolations were a proximate cause of the plaintiff's accident and alleged injuries. Thus, therespondents failed to establish their prima facie entitlement to judgment as a matter of law, andwe need not examine the sufficiency of the plaintiff's opposition papers (see Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851 [1985]). Accordingly, the Supreme Court should havedenied that branch of the respondents' motion which was for summary judgment dismissing thecomplaint insofar as asserted against them. Skelos, J.P., Florio, Roman and Miller, JJ., concur.