| Matos v Salem Truck Leasing |
| 2013 NY Slip Op 02548 [105 AD3d 916] |
| April 17, 2013 |
| Appellate Division, Second Department |
| Fernando Matos, Appellant, v Salem TruckLeasing et al., Respondents. |
—[*1] Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from somuch of an order of the Supreme Court, Kings County (Kramer, J.), dated April 27,2012, as denied that branch of his motion which was for summary judgment on the issueof liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff's vehicle was involved in an accident, at the intersection of RogersAvenue and Eastern Parkway in Brooklyn, with a truck owned by the defendant SalemTruck Leasing and operated by the defendant Forrest K. Bennett. The plaintiffcommenced this action against the defendants to recover damages for personal injuries.
The plaintiff moved, inter alia, for summary judgment on the issue of liability. Insupport of that branch of his motion, he submitted his own affidavit stating that theaccident occurred as he was stopped for a red light on Eastern Parkway. He averred thatthe truck, operated by Bennett, which had been stopped directly in front of his vehicle,within the intersection of Eastern Parkway and Rogers Avenue, suddenly backed up intohis stopped vehicle. He also stated that his vehicle had been stopped for more than fiveseconds and that, since there was another vehicle stopped behind his vehicle, there wasnothing he could do to avoid contact with the truck driven by Bennett. The SupremeCourt denied that branch of the plaintiff's motion which was for summary judgment onthe issue of liability.
The plaintiff established his prima facie entitlement to judgment as a matter of lawon the issue of liability through his affidavit, which demonstrated that Bennett wasnegligent because he violated Vehicle and Traffic Law §§ 1202 (a) (1) (c)and 1211 (a) (see generallyVainer v DiSalvo, 79 AD3d 1023, 1023-1024 [2010]; Botero v Erraez,289 AD2d 274 [2001]; Ferrara v Castro, 283 AD2d 392, 393 [2001]). Theplaintiff also demonstrated that Bennett's negligence was the sole proximate cause of theaccident, without any comparative negligence on his part, since he had been stopped atthe red light for more than five seconds before the accident occurred (see generallyVainer v DiSalvo, 79 AD3d [*2]at 1024).
In opposition, the defendants raised a triable issue of fact through the affidavit ofBennett, who averred that he was stopped on Rogers Avenue, within its intersection withEastern Parkway, because of an accident between the vehicles in front of him. He furtheraverred that the plaintiff's vehicle attempted to go around the truck he was operating,which caused the contact between their two vehicles (see generally Abbott v Picture Cars E., Inc., 78 AD3d 869,870 [2010]).
Contrary to the plaintiff's contention, the Supreme Court properly consideredBennett's affidavit even though it was signed and notarized in South Carolina and wasnot accompanied by a certification in accordance with CPLR 2309 (c). This defect wasnot fatal, as the plaintiff was not prejudiced thereby (see CPLR 2001; Rivers v Birnbaum, 102 AD3d26, 44 [2012]; Matter ofRecovery of Judgment, LLC v Warren, 91 AD3d 656, 657 [2012]; Betz v Daniel Conti, Inc., 69AD3d 545 [2010]). Moreover, Bennett's affidavit was notarized in compliance withsection 26-1-60 of the Code of Laws of South Carolina (see Carroll v Cash Mills,125 SC 332, 118 SE 290 [1923]).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly denied that branch of the plaintiff's motionwhich was for summary judgment on the issue of liability. Dillon, J.P., Balkin, Austinand Sgroi, JJ., concur.