| Boereau v Scott |
| 2016 NY Slip Op 04168 [140 AD3d 687] |
| June 1, 2016 |
| Appellate Division, Second Department |
[*1]
| Jobed Boereau, Individually and as Father and NaturalGuardian of Jonathan Boereau, et al., Respondents, v Logan A. Scott, Jr., et al.,Appellants. |
Boeggeman, George & Corde, P.C., White Plains, NY (Daniel E. O'Neill ofcounsel), for appellants.
Brian A. Kelly, Spring Valley, NY, for respondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom an order of the Supreme Court, Rockland County (Loehr, J.), dated September 23,2014, which denied their 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 granted.
The infant plaintiff and his father, suing derivatively, commenced this actioncontending that the infant plaintiff was struck by the rear of a minivan operated by thedefendant Logan A. Scott, Jr., and owned by the defendant Victoria W. Zazyczny. Thedefendants moved for summary judgment dismissing the complaint on the ground thatthe infant plaintiff's conduct was the sole proximate cause of the accident. The SupremeCourt denied the motion on the merits and on the ground that the motion was untimely.The defendants appeal. We reverse.
Here, the defendants established their prima facie entitlement to judgment as a matterof law by demonstrating that the infant plaintiff was the sole proximate cause of theaccident (see Balliet v NorthAmityville Fire Dept., 133 AD3d 559, 560 [2015]; Braxton v Jennings, 63 AD3d772 [2009]). The defendants submitted the deposition testimony of the infantplaintiff, his father, and the defendant driver, and a police accident report. According tothe infant plaintiff, immediately before the incident he had been standing between twoparked vehicles with his back to the flow of traffic as he tried to prevent his little brotherfrom running into the flow of traffic. As the infant plaintiff tried to step closer to thesidewalk, his little brother pushed him further away from the sidewalk trying to get pasthim, and the infant plaintiff took more steps backward. The defendant driver testifiedthat he was traveling forward at about 15 miles per hour when he heard and felt a"thump" to the rear passenger wheel area of the minivan that he was driving. The infantplaintiff testified that he did not see the defendants' vehicle prior to impact, and thedefendant driver testified that he did not see the infant plaintiff prior to the incident. Thepolice accident report, which was submitted without objection, contains a diagramdemonstrating that a person impacts the rear passenger side of a vehicle; the diagram hasan arrow indicating that the person emerged from between two parked vehicles (see Santiago v Rodriguez, 38AD3d 639, 640 [2007]; Scudera v Mahbubur, 299 AD2d 535, 535 [2002]).Thus, the defendants established, prima facie, that the infant plaintiff was the soleproximate cause [*2]of the accident (see Balliet vNorth Amityville Fire Dept., 133 AD3d at 560; Braxton v Jennings, 63 AD3d 772 [2009]; Reid v Miguel, 43 AD3d814, 815 [2007]; Carrasco v Monteforte, 266 AD2d 330, 331 [1999]).
In opposition, the plaintiffs failed to raise a triable issue of fact (see Reid vMiguel, 43 AD3d at 815; Sheppeard v Murci, 306 AD2d 268, 269[2003]).
Under the facts and circumstances of this case, the Supreme Court improperly deniedthe defendants' motion for summary judgment as untimely. CPLR 3212 (a) provides that"[i]f no such date is set by the court, such motion shall be made no later than onehundred twenty days after the filing of the note of issue, except with leave of court ongood cause shown" (CPLR 3212 [a]). Here, the motion was filed on June 4, 2014 and, inthe order appealed from, the court indicated that the note of issue was filed on March 13,2014—well within the 120 days contemplated by the CPLR (see CPLR3212 [a]; Brill v City of NewYork, 2 NY3d 648, 652 [2004]; Silva v FC Beekman Assoc., LLC, 126 AD3d 963 [2015]).The record reveals no preliminary order setting a deadline shorter than that provided inCPLR 3212 (a). Moreover, the individual part rules of the Justice of the Supreme Courtwho decided the motion, which were in effect at the time the motion was made, also donot shorten the deadline established in the CPLR (see Crawford v Liz Claiborne, Inc., 11 NY3d 810, 812-813[2008]; Rodriguez v Presbyterian Hosp. in City of N.Y., 259 AD2d 310, 311[1999]). We take judicial notice of those rules, which are on the New York State UnifiedCourt System public website (see Matter of Cento Props. Co. v Assessor, 71 AD3d 1015,1016 [2010]; KingsbrookJewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 19-20 [2009]).
Accordingly, the defendants' motion for summary judgment should have beengranted. Dillon, J.P., Dickerson, Cohen and Duffy, JJ., concur.