| Qi Sheng Lu v World Wide Travel of Greater N.Y.,Ltd. |
| 2013 NY Slip Op 07463 [111 AD3d 690] |
| November 13, 2013 |
| Appellate Division, Second Department |
| Qi Sheng Lu, Respondent, v World Wide Travel ofGreater New York, Ltd., et al., Appellants. |
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In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (F. Rivera, J.), dated June 29, 2012, whichgranted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is denied.
This action arises out of a motor vehicle accident that occurred on December 24,2010, at approximately 1:00 a.m., at the intersection of Division Street and Bowery inManhattan. The plaintiff alleged that he was waiting to make a right turn onto Bowerywhen the defendants' bus came into his lane and struck the side of his vehicle. Theplaintiff moved for summary judgment on the issue of liability. The Supreme Courtgranted the motion.
In support of his motion, the plaintiff established his prima facie entitlement tojudgment as a matter of law (seeVainer v DiSalvo, 79 AD3d 1023 [2010]; Them-Tuck Chung v Pinto, 26 AD3d 428, 429 [2006]; Gomez v Sammy's Transp.,Inc., 19 AD3d 544 [2005]). However, in opposition thereto, the defendantsraised a triable issue of fact, inter alia, as to how the accident occurred (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Jimenez v Kimmerling, 95 AD3d 953, 954 [2012]; Tovmasyan v New York City Tr.Auth., 75 AD3d 638 [2010]). Contrary to the Supreme Court's determination,the alleged technical defect relating to the notary public's stamp that was imprinted uponthe affidavit of the defendant Yvon Pressoir did not invalidate the official act of thenotary public (see CPLR 2001; Executive Law § 137; Parkhill vCleary, 305 AD2d 1088, 1089 [2003]) and, hence, did not invalidate the affidavit.Moreover, the alleged defect was raised for the first time in the plaintiff's reply papersand was sufficiently addressed by the defendants in their surreply papers (see generally Hanscom vGoldman, 109 AD3d 964, 964 [2013]). Accordingly, the Supreme Court erredin granting the plaintiff's motion for summary judgment on the issue of liability. Rivera,J.P., Skelos, Chambers and Hall, JJ., concur.