| Valentin v Parisio |
| 2014 NY Slip Op 05423 [119 AD3d 854] |
| July 23, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Rosa A. Valentin, Appellant, v Carmen E.Parisio et al., Respondents. |
Robinson & Yablon, P.C., New York, N.Y. (Thomas Torto and Jason Levine ofcounsel), for appellant.
Martyn, Toher & Martyn, Mineola, N.Y. (Paul D. McBride of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Nahman, J.), dated October 12, 2012,which denied her motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
On April 19, 2011, at approximately 5:30 p.m., the plaintiff's vehicle and atractor-trailer owned by the defendant Gold Coast Freightways, Inc., and driven by thedefendant Carmen E. Parisio, were involved in a collision. The collision occurred shortlyafter Parisio came off the exit ramp from the Van Wyck Expressway and merged onto theExpressway's southbound service road, where the plaintiff was driving in the middlelane. According to the plaintiff and a nonparty eyewitness, Parisio drove thetractor-trailer straight through the far left lane, crossing into the middle lane, and hittingthe plaintiff's car with its tires. According to the defendants, Parisio remained in the farleft lane at all times, stopped at the traffic light at the intersection with Linden Boulevardand, when the light turned green, had moved forward about five feet into the intersectionwhen he felt a bump, which was the plaintiff's vehicle colliding with his, after her vehiclecrossed into the far left lane.
In determining a motion for summary judgment, evidence must be viewed in the lightmost favorable to the nonmoving party, and all reasonable inferences must be resolved infavor of the nonmoving party (see Escobar v Velez, 116 AD3d 735 [2014]; Bravo v Vargas, 113 AD3d579, 582 [2014]; Green vQuincy Amusements, Inc., 108 AD3d 591, 592 [2013]). To establish prima facieentitlement to judgment as a matter of law on the issue of liability, a plaintiff mustdemonstrate that the defendant was negligent and that the plaintiff was free ofcomparative fault (see Escobar v Velez, 116 AD3d at 735-736; Singh v Thomas, 113 AD3d748 [2014]). In support of her motion for summary judgment on the issue ofliability, the plaintiff submitted, among other things, the transcript of Parisio's deposition,in which he stated that he remained in the far left traffic lane at all times prior to thecollision, and that he felt the bump of the plaintiff's vehicle when it crossed over into hislane. Therefore, viewing the evidence in the light most favorable to the nonmovantdefendants (see Escobar v Velez, 116 AD3d at 735; Bravo v Vargas, 113AD3d at 582; Green v Quincy Amusements, [*2]Inc., 108 AD3d at 592), the Supreme Court properlyconcluded that the plaintiff failed to eliminate a triable issue of fact as to how theaccident occurred and who was at fault.
Contrary to the plaintiff's assertions, Parisio's testimony was not internallyinconsistent on the material facts, was not inconsistent with his previously preparedaccident report, and did not constitute an attempt to create a feigned issue of fact (see Jahangir v Logan Bus Co.,Inc., 89 AD3d 1064 [2011]; Kievman v Philip, 84 AD3d 1031, 1033 [2011]; Imamkhodjaev vKartvelishvili, 44 AD3d 619, 620-621 [2007]).
Accordingly, the Supreme Court properly denied the plaintiff's motion for summaryjudgment on the issue of liability. Skelos, J.P., Chambers, Duffy and LaSalle, JJ.,concur.