| Brabham v City of New York |
| 2013 NY Slip Op 02526 [105 AD3d 881] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Terretha Brabham, Appellant, v City of New Yorket al., Defendants, and Luis Grito et al., Respondents. |
—[*1] Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Melville, N.Y. (James V.Derenze of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Ash, J.), dated March 1, 2012, which grantedthe motion of the defendants Luis Grito and Delta Luxury Car & Limo, Inc., for leave torenew and reargue their opposition to that branch of her motion which was for summaryjudgment on the issue of liability against them, which had been granted in an order of thesame court dated October 28, 2011, and, upon renewal and reargument, vacated thedetermination in the order dated October 28, 2011, granting that branch of her motionwhich was for summary judgment on the issue of liability against those defendants andthereupon denied that branch of her motion.
Ordered that the order dated March 1, 2012 is modified, on the law, (1) by deletingthe provision thereof granting that branch of the motion of the defendants Luis Grito andDelta Luxury Car & Limo, Inc., which was for leave to renew their opposition to thatbranch of the plaintiff's motion which was for summary judgment on the issue of liabilityagainst them, and substituting therefor a provision denying that branch of the motion ofthose defendants, and (2) by deleting the provisions thereof, upon renewal andreargument, vacating the determination in the order dated October 28, 2011, granting thatbranch of the plaintiff's motion which was for summary judgment on the issue of liabilityagainst the defendants Luis Grito and Delta Luxury Car & Limo, Inc., and thereupondenying that branch of the plaintiff's motion, and substituting therefor a provision, uponreargument, adhering to the original determination in the order dated October 28, 2011,granting that branch of the plaintiff's motion which was for summary judgment on theissue of liability against the defendants Luis Grito and Delta Luxury Car & Limo, Inc.; asso modified, the order dated March 1, 2012, is affirmed, with one bill of costs to theplaintiff, payable by the defendants Luis Grito and Delta Luxury Car & Limo, Inc.
The plaintiff was a passenger in a vehicle operated by Luis Brito, incorrectly suedherein as Luis Grito, and owned by the defendant Delta Luxury Car & Limo, Inc.(hereinafter together the Delta defendants), when the vehicle collided with a New YorkCity police vehicle operated by the defendant Joseph Lanza. The plaintiff subsequentlycommenced this action against [*2]the Delta defendantsand Lanza, among others, to recover damages for personal injuries resulting from thecollision. In an order dated October 28, 2011, the Supreme Court, inter alia, granted thatbranch of the plaintiff's motion which was for summary judgment on the issue of liabilityagainst the Delta defendants. In an order dated March 1, 2012, the Supreme Courtgranted the Delta defendants' motion for leave to renew and reargue their opposition tothat branch of the plaintiff's motion which was for summary judgment on the issue ofliability against the Delta defendants and, upon renewal and reargument, denied thatbranch of the plaintiff's motion.
The Supreme Court should have denied that branch of the Delta defendants' motionwhich was for leave to renew their opposition to that branch of the plaintiff's motionwhich was for summary judgment on the issue of liability as against them. The newevidence submitted by the Delta defendants would not have changed the priordetermination (see CPLR 2221 [e]; Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 792[2012]; Behar v Quaker RidgeGolf Club, Inc., 95 AD3d 808, 809 [2012]; Peycke v Newport Media Acquisition II, Inc., 40 AD3d722 [2007]).
Moreover, upon reargument, the Supreme Court should have adhered to its priordetermination granting that branch of the plaintiff's motion which was for summaryjudgment on the issue of liability against the Delta defendants. The plaintiffdemonstrated, prima facie, that Brito was negligent in driving his vehicle at an excessivespeed in violation of the Vehicle and Traffic Law (see Vehicle and Traffic Law§ 1180; Sentino vValerio, 72 AD3d 1063, 1064 [2010]). In opposition, the Delta defendantsfailed to raise a triable issue of fact. While the Delta defendants submitted evidence thatthe plaintiff was not wearing a seatbelt at the time of the accident, the plaintiff's allegedfailure to wear a seatbelt is not relevant to the issue of liability but, rather, may, ifproperly pleaded as an affirmative defense, "be introduced into evidence in mitigation ofdamages" (Vehicle and Traffic Law § 1229-c [8]; see Spier v Barker, 35NY2d 444, 450 [1974]; Stevenson v Stockslager, 33 AD3d 690, 690-691 [2006]).Further, the Delta defendants failed to demonstrate that an award of summary judgmentto the plaintiff was premature, as they failed to demonstrate that discovery may lead torelevant evidence or that facts essential to justify opposition to the motion wereexclusively within the knowledge and control of the plaintiff (see CPLR 3212[f]; Boorstein v 1261 48th St.Condominium, 96 AD3d 703, 704 [2012]; Buchinger v Jazz Leasing Corp., 95 AD3d 1053 [2012]).Finally, since Brito was negligent, the right of the plaintiff, as an innocent passenger, toan award of summary judgment on the issue of liability against the Delta defendants isnot barred or limited by the existence of any unresolved questions as to theapportionment of fault between Brito and Lanza (see Medina v Rodriguez, 92 AD3d 850 [2012];Silberman v Surrey Cadillac Limousine Serv., 109 AD2d 833, 833-834 [1985];Kiernan v Edwards, 97 AD2d 750 [1983]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Leventhal, Halland Lott, JJ., concur.