| Bentick v Gatchalian |
| 2017 NY Slip Op 01172 [147 AD3d 890] |
| February 15, 2017 |
| Appellate Division, Second Department |
[*1]
| Cathleen Bentick, Respondent, v Fernando Gatchalian,Appellant. |
Russo & Tambasco, Melville, NY (Susan J. Mitola and Yamile Al-Sullami of counsel),for appellant.
TallerGallet LLC, Forest Hills, NY (Y. David Taller and Regis A. Gallet of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Queens County (Modica, J.), dated December 10, 2015, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
On December 30, 2014, a vehicle operated by the plaintiff collided with a vehicle operatedby the defendant. The collision occurred while the plaintiff was in the process of making a leftturn from westbound Hillside Avenue onto southbound Francis Lewis Boulevard in Queens, andthe defendant was traveling eastbound on Hillside Avenue. The plaintiff subsequentlycommenced the instant personal injury action against the defendant. Before discovery wascomplete, the plaintiff moved for summary judgment on the issue of liability. The Supreme Courtgranted the motion, and the defendant appeals.
To prevail on a motion for summary judgment on the issue of liability, a plaintiff mustestablish, prima facie, not only that the opposing party was negligent, but also that the plaintiffwas free from comparative fault (see Thoma v Ronai, 82 NY2d 736, 737 [1993]; Moluh v Vord, 143 AD3d 680[2016]; Phillip v D&D Carting Co.,Inc., 136 AD3d 18, 24 [2015]; Espinoza v Coco-Cola Bottling Co. of N.Y., Inc., 121 AD3d 640,640 [2014]; Gorenkoff v Nagar, 120AD3d 470, 471 [2014]; Lu YuanYang v Howsal Cab Corp., 106 AD3d 1055, 1056 [2013]). Here, the plaintiffestablished her prima facie entitlement to judgment as a matter of law on the issue of liability.The evidence submitted by the plaintiff, which consisted mainly of her own affidavit,demonstrated that the defendant's vehicle struck her vehicle after she had already entered theintersection with the green light in her favor, and after checking the intersection for oncomingtraffic going eastbound on Hillside Avenue, and northbound and southbound on Francis LewisBoulevard. According to the plaintiff, after she had already entered the intersection and was inthe process of making a left turn, the defendant's vehicle went through the red light at theintersection, heading eastbound on Hillside Avenue, and directly into her vehicle. She furtheraverred in her affidavit that the defendant's vehicle was traveling at such a rate of speed that shewas unable to avoid the accident. Her affidavit demonstrated, prima facie, that she was not atfault in the happening of the accident, and that the sole proximate cause of the accident was the[*2]defendant's conduct in entering the intersection withoutstopping at the red traffic signal, in violation of Vehicle and Traffic Law§§ 1110 (a) and 1111 (d) (1) (see Chuachingco v Christ, 132 AD3d 798, 798-799 [2015]; see also Turner v Butler, 139 AD3d715, 716 [2016]; Farris vReyes, 119 AD3d 734, 734 [2014]; Joaquin v Franco, 116 AD3d 1009, 1009-1010 [2014]).
In opposition, the defendant failed to raise a triable issue of fact. Counsel's affirmation,standing alone, was insufficient to raise a triable issue of fact (see CPLR 3212 [b];Roche v Hearst Corp., 53 NY2d 767, 769 [1981]; Gallo v Jairath, 122 AD3d 795, 797 [2014]). Furthermore, contraryto the defendant's contention, the plaintiff's motion was not premature, since the defendant failedto demonstrate that discovery might lead to relevant evidence or that facts essential to justifyopposition to the motion were exclusively within the knowledge and control of the plaintiff(see Turner v Butler, 139 AD3d at 716). "The mere hope or speculation that evidencesufficient to defeat a motion for summary judgment may be uncovered during the discoveryprocess is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 AD3d 759, 760 [2006]).
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the issue of liability. Balkin, J.P., Leventhal, Roman and LaSalle, JJ., concur.