| Rugova v Davis |
| 2013 NY Slip Op 08003 [112 AD3d 404] |
| December 3, 2013 |
| Appellate Division, First Department |
| Albana Rugova, as Administratrix of the Estate of DardanBinakaj, Deceased, Respondent, v Shawn D. Davis,Appellant. |
—[*1] Pollack, Pollack, Isaac & De Cicco, LLP, New York (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 5, 2012,which denied defendant's motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, and the motion granted. The Clerk isdirected to enter judgment dismissing the complaint.
The motion court improvidently exercised its discretion by not consideringdefendant's reply papers, and we review them in determining the appeal (seeCPLR 2004).
Defendant demonstrated his prima facie entitlement to judgment as a matter of lawby showing that his car was struck in the rear by plaintiff's decedent's car, and inresponse, plaintiff failed to provide a nonnegligent explanation, in evidentiary form, forthe collision (see Avant v CepinLivery Corp., 74 AD3d 533 [1st Dept 2010]).
The transcripts of the deposition testimony of two police officers who testified in arelated action are hearsay as to defendant, since he was not notified about this deposition,nor present for the testimony given by the officers (see CPLR 3117 [a] [3]; Rivera v New York City Tr.Auth., 54 AD3d 545, 547 [1st Dept 2008]; Weinberg v City of New York, 3 AD3d 489 [2d Dept2004]; Claypool v City of New York, 267 AD2d 33 [1st Dept 1999]). Althoughthe transcripts are hearsay, hearsay may be used to defeat summary judgment as long as itis not the only evidence submitted in opposition (see O'Halloran v City of New York, 78 AD3d 536 [1stDept 2010]; Rivera v GTAcquisition 1 Corp., 72 AD3d 525 [2010]). However, plaintiff failed to raise atriable issue of fact, since she submitted no other admissible evidence as to the happeningof the accident in opposition to defendant's motion for summary judgment.
Plaintiff may not avail herself of the Noseworthy doctrine (Noseworthy vCity of New York, 298 NY 76, 80 [1948]), so as not to be held to as high a degree ofproof, since plaintiff [*2]failed to make a showing offacts from which negligence can be inferred (see Melendez v Parkchester Med. Servs., P.C., 76 AD3d927 [1st Dept 2010]). Concur—Andrias, J.P., Acosta, Saxe, Renwick andManzanet-Daniels, JJ.