| Collado v Jiacono |
| 2015 NY Slip Op 02443 [126 AD3d 927] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Juan Collado, Appellant, v John Jiacono et al.,Respondents. |
Surdez & Perez, P.C., Astoria, N.Y. (Kevin J. Perez of counsel), forappellant.
McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (M. GraceSacro of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Martin, J.), entered April 16, 2013, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is denied.
On June 7, 2008, the plaintiff was one of five passengers in a vehicle owned andoperated by his brother, as it was traveling on the Southern State Parkway, when thatvehicle was allegedly struck in the rear by a vehicle displaying dealership license platesowned by the defendant Bayridge Automotive Management Group, also known as BayRidge Lexus (hereinafter Bayridge). The plaintiff commenced this action againstBayridge and the driver of the Bayridge vehicle. After issue was joined and discoverycompleted, the defendants moved for summary judgment, alleging that they had norecord of their vehicle being involved in any such accident and that the plaintiff would beunable to prove that the subject accident occurred or that the defendants were involved init. The Supreme Court granted the motion. The plaintiff appeals, and we reverse.
While the ultimate burden of proof at trial will fall upon the plaintiff, a defendantseeking summary judgment bears the initial burden of demonstrating its entitlement tojudgment as a matter of law by submitting evidentiary proof in admissible form (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]). The ultimate burden ofproof after trial plays no part in the assessment of whether there are relevant factualissues presented on a motion for summary judgment (see generally Jacobsen v New York City Health & Hosps.Corp., 22 NY3d 824 [2014]). On a summary judgment motion, a movingdefendant does not meet its burden of affirmatively establishing its entitlement tojudgment as a matter of law by merely pointing to gaps in the plaintiff's case. It mustaffirmatively demonstrate the merit of its claim or defense (see Marielisa R. v Wolman RinkOperations, LLC, 94 AD3d 963 [2012]; Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003,1005 [2011]; Shafi v Motta,73 AD3d 729, 730 [2010]; Pace v International Bus. Mach. Corp., 248AD2d 690 [1998]). A motion for summary judgment " 'should not be grantedwhere the facts are in dispute, where conflicting inferences may be drawn from theevidence, or where there are issues of credibility' " (Ruiz v Griffin, 71 AD3d1112, 1115 [2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348,348 [2002]; see [*2]Pavane v Marte, 109 AD3d 970 [2013]; Benetatos v Comerford, 78AD3d 750 [2010]; Baker vD.J. Stapleton, Inc., 43 AD3d 839 [2007]).
Here, the affirmation of the defendants' attorney that was submitted in support of themotion, along with brief excerpts from the transcripts of the deposition testimony ofparties and witnesses, was insufficient to establish the defendants' entitlement tojudgment as a matter of law (seeShafi v Motta, 73 AD3d 729 [2010]). The plaintiff, along with his brother,testified at their depositions that they were involved in an accident on the Southern StateParkway when a vehicle bearing dealership license plates struck the vehicle in which theplaintiff was a passenger. The plaintiff's brother asserted at his deposition that, upon therequest of the driver of the vehicle bearing the dealership license plates, the police werenot called to the scene of the accident. Instead, the driver of that vehicle allegedly gavethe plaintiff's brother the telephone number of the dealership, and told the brother that hisvehicle would be repaired there. The defendants' witnesses testified that the subjectlicense plate did indeed belong to a vehicle owned by Bayridge, but that they had norecord of the occurrence of such an accident. With this evidence, the defendants failed toeliminate triable issues as to their claim that a Bayridge vehicle was not involved in thesubject accident.
In light of the defendants' failure to meet their prima facie burden, their motion forsummary judgment should have been denied, without regard to the sufficiency of theplaintiff's opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).Dickerson, J.P., Cohen, Duffy and LaSalle, JJ., concur.