| Rungoo v Leary |
| 2013 NY Slip Op 06556 [110 AD3d 781] |
| October 9, 2013 |
| Appellate Division, Second Department |
| Tanuja Rungoo, Plaintiff, v Douglas F. Leary,Appellant, and Constance Trottman et al., Respondents. |
—[*1] Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Lauren M. Piacentini ofcounsel), for respondent Constance Trottman.
In an action to recover damages for personal injuries and injury to property, thedefendant Douglas F. Leary appeals from an order of the Supreme Court, Queens County(Markey, J.), entered November 13, 2012, which denied his motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against him.
Ordered that the order is reversed, on the law, with one bill of costs payable by thedefendant Constance Trottman and the defendant EAN Trust Company to the defendantDouglas F. Leary, and the motion of the defendant Douglas F. Leary for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against him isgranted.
The defendant Douglas F. Leary was stopped in his vehicle at a red light at theintersection of Linden Boulevard and Elmont Road in Elmont, directly behind theplaintiff's vehicle, when a third vehicle, operated by the defendant Constance Trottmanand owned by the defendant EAN Trust Company (hereinafter EAN), struck the driver'sside of Leary's vehicle, and also struck the plaintiff's vehicle. Trottman told Leary thatshe was unable to bring her vehicle to a stop because her brakes did not respond on thewet roadway. The plaintiff commenced this action against Leary, Trottman, and EAN.Trottman and EAN asserted cross claims for contribution against Leary. Beforedepositions were conducted, Leary moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against him. Trottman and EANseparately opposed the motion. The plaintiff did not submit any papers in opposition. TheSupreme Court denied Leary's motion.
To establish his prima facie entitlement to judgment as a matter of law on his motionfor summary judgment, the burden was on Leary to demonstrate that he was not at faultin the happening of the accident (see Moore v Singh, 108 AD3d 602 [2013]; Nozine v Anurag, 38 AD3d631, 632 [2007]; Sherin vRoda, 14 AD3d 604, 605 [2005]; see also Cajas-Romero v Ward, 106 AD3d 850, 851[2013]; Kastritsios vMarcello, 84 AD3d 1174, 1174-1175 [2011]; Hill v Ackall, 71 AD3d829 [2010]). In support of his motion, Leary submitted an affidavit, in which hestated that his vehicle was stopped for a red light at the intersection of Linden Boulevardand Elmont Road for at least 30 seconds in the right lane of the two [*2]lanes for traffic traveling in his direction on LindenBoulevard, when he was struck on the "driver's side toward . . . the rear" bythe vehicle operated by Trottman. He stated that his vehicle neither moved as a result ofthe impact nor came into contact with the plaintiff's vehicle, which was stopped in frontof him. Consequently, Leary established his prima facie entitlement to judgment as amatter of law (see Moore v Singh, 108 AD3d at 602; Nozine v Anurag,38 AD3d at 632; Sherin v Roda, 14 AD3d at 605). Since the plaintiff did notsubmit any papers in opposition, the Supreme Court should have granted that branch ofLeary's motion which was for summary judgment dismissing the complaint insofar asasserted against him.
In opposition to Leary's prima facie showing, neither Trottman nor EAN raised atriable issue of fact. Trottman explained, in her affidavit in opposition to the motion, thatshe was unable to stop her vehicle from colliding with the plaintiff's vehicle and Leary'svehicle on the wet road despite traveling within the speed limit, at a safe distance behindthe other vehicles, and applying her brakes at a reasonable distance. However, Trottman'saffidavit was silent as to the manner in which Leary operated his vehicle, and did notattribute the happening of the accident to Leary's operation of his vehicle. WhileTrottman's account of the accident may provide a defense with respect to the plaintiff'scauses of action against her, it did not raise a triable issue of fact with respect to anyalleged negligence on Leary's part (see Moore v Singh, 108 AD3d at 602).
Further, there is no merit to the contention, made by both Trottman and EAN in theirsubmissions to the Supreme Court, that Leary's motion was premature because neither henor the plaintiff had been deposed. "A party who contends that a summary judgmentmotion is premature is required to demonstrate that discovery might lead to relevantevidence" (Cajas-Romero v Ward, 106 AD3d at 852; see Anzel v Pistorino, 105AD3d 784, 786 [2013]; Cortes v Whelan, 83 AD3d 763 [2011]). The " 'mere hopeor speculation that evidence sufficient to defeat a motion for summary judgment may beuncovered during the discovery process is insufficient to deny the motion' "(Cajas-Romero v Ward, 106 AD3d at 852, quoting Lopez v WS Distrib., Inc., 34AD3d 759, 760 [2006]; see Anzel v Pistorino, 105 AD3d at 786; Cortesv Whelan, 83 AD3d at 763). Trottman and EAN failed to identify what informationthey hoped to discover at the depositions of the plaintiff and Leary that woulddemonstrate that Leary caused or contributed to the happening of accident (seeCajas-Romero v Ward, 106 AD3d at 852). Since it was undisputed that both theplaintiff's vehicle and Leary's vehicle were stopped at a red light for at least 30 secondswhen the accident occurred, the denial of those branches of Leary's motion which werefor summary judgment dismissing all cross claims asserted against him, on the groundsthat those branches of the motion were premature and that deposition testimony wouldreveal relevant evidence with respect to Leary's alleged negligence, was based on merespeculation (see Lopez v WS Distrib., Inc., 34 AD3d at 760).
Accordingly, the Supreme Court should have granted those branches of Leary'smotion which were for summary judgment dismissing all cross claims asserted againsthim. Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.