| Turner v Butler |
| 2016 NY Slip Op 03498 [139 AD3d 715] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Kumosan Turner, Appellant, v Michael G.Butler et al., Respondents. |
Restivo & Murphy LLP, Garden City, NY (Todd A. Restivo of counsel), forappellant.
Roe & Associates, Garden City, NY (Patrick B. McKeown of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appealsfrom an order of the Supreme Court, Queens County (Nahman, J.), entered March 19,2015, which denied those branches of his motion which were for summary judgment onthe issue of liability and dismissing the defendants' fourth and twelfth affirmativedefenses.
Ordered that the order is reversed, on the law, with costs, and those branches of theplaintiff's motion which were for summary judgment on the issue of liability anddismissing the defendants' fourth and twelfth affirmative defenses are granted.
The plaintiff established his prima facie entitlement to judgment as a matter of lawon the issue of liability and dismissing the defendants' fourth and twelfth affirmativedefenses. The evidence submitted by the plaintiff demonstrated that the vehicle operatedby the defendant Michael G. Butler and owned by the defendant Jean L. Butler struck thevehicle owned and operated by the plaintiff in an intersection. The evidence furtherdemonstrated that the sole proximate cause of the accident was the defendant driver'sfailure to stop at a red traffic signal and procession through the intersection, in violationof Vehicle and Traffic Law § 1111 (d) (2) (see Monteleone v Jung PyoHong, 79 AD3d 988 [2010]; Ramos v Triboro Coach Corp., 31 AD3d 625 [2006]; Borges v Zukowski, 22 AD3d439 [2005]; Casanova v New York City Tr. Auth., 279 AD2d 495 [2001]).In opposition, the defendants failed to raise a triable issue of fact (see Deleg v Vinci, 82 AD3d1146 [2011]; Cavitch vMateo, 58 AD3d 592 [2009]).
Furthermore, contrary to the defendants' contention, the plaintiff's motion was notpremature since the defendants failed to demonstrate that discovery might lead torelevant evidence or that facts essential to justify opposition to the motion wereexclusively within the knowledge and control of the plaintiff (see Kimyagarov v Nixon TaxiCorp., 45 AD3d 736 [2007]). The defendants' professed need to conductdiscovery did not warrant denial of the motion since they already had personalknowledge of the relevant facts (see Abramov v Miral Corp., 24 AD3d 397, 398 [2005])."The mere hope or speculation that evidence sufficient to defeat a motion for summaryjudgment may be uncovered during the discovery process is insufficient to deny themotion" (Lopez v WS Distrib.,Inc., 34 AD3d 759, 760 [2006]; see Monteleone v Jung Pyo Hong, 79 AD3d 988 [2010]; Corwin v Heart Share HumanServs. of N.Y., 66 AD3d 814 [2009]).
[*2] Accordingly, the Supreme Court should have grantedthose branches of the plaintiff's motion which were for summary judgment on the issueof liability and dismissing the defendants' fourth and twelfth affirmative defenses.Mastro, J.P., Dickerson, Hall and Sgroi, JJ., concur.