Broer v. Smith

658 N.Y.S.2d 447 | N.Y. App. Div. | 1997

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated September 27, 1996, which granted the plaintiffs’ motion for partial summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

Contrary to the defendant’s present contention, the Supreme Court did not err in granting the plaintiffs’ motion for partial summary judgment. The minutes of the defendant’s plea of guilty in a criminal prosecution arising from the same incident as this civil lawsuit, as amplified and explained by the defendant’s subsequent deposition testimony, precluded the defendant from contesting civil liability for recklessly and negligently knocking down the injured plaintiff (see, Grayes v DiStasio, 166 AD2d 261; Bergen v Shapiro, 129 AD2d 669). The defendant came forward with no evidence to support his conclusory claim that the injured plaintiff was partially responsible for his own injuries (cf., Jordan v Britton, 128 AD2d 315).

Furthermore, the plaintiffs’ application did not violate the general proscription against making successive motions for summary judgment in the same action (see generally, Taylor v Brooklyn Hosp., 187 AD2d 714; La Freniere v Capital Dist. Transp. Auth., 105 AD2d 517; Graney Dev. Corp. v Taksen, 62 AD2d 1148), since the application was based upon new information obtained during disclosure and was invited by the court (see, Schriptek Mktg. v Columbus McKinnon Corp., 187 AD2d 800; Beagan v Manhattanville Nursing Care Ctr., 176 AD2d 633). Bracken, J. P., Rosenblatt, Ritter and Luciano, JJ., concur.