Kerolle v. NicholsonKerolle v. Nicholson
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This opinion is uncorrected and subject to revision before publication in the Official Reports.
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN JEFFREY A. COHEN JOSEPH J. MALTESE, JJ.
Theophile Kerolle, et al., appellants, v Basil G. Nicholson, et al., respondents, et al., defendants.
Lipsig Shapey Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac], of counsel), for appellants.
Newman and Newman LLP, Jamaica, NY (Gregory J. Newman of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), entered June 29, 2017. The order, insofar as appealed from, denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against the defendants Basil G. Nicholson and Karen M. Nicholson.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against the defendants Basil G. Nicholson and Karen M. Nicholson is granted.
On July 7, 2014, the injured plaintiff was operating his motorcycle on 223rd Street in Queens, when a vehicle owned by the defendant Basil G. Nicholson and operated by the defendant Karen M. Nicholson (hereinafter together the Nicholson defendants), which was traveling on 107th Avenue, collided with the injured plaintiff‘s motorcycle at the intersection of those two streets. At the intersection, traffic on 223rd Street was not governed by any traffic control device, while traffic on 107th Avenue was controlled by a stop sign.
The injured plaintiff, and his wife suing derivatively, commenced this action against the Nicholson defendants and others,
In support of their motion, the plaintiffs submitted, among other things, affidavits from the injured plaintiff and a witness, Shahiem Smith, who observed the collision. According to those affidavits, Karen drove the Nicholson defendants’ vehicle into the intersection without yielding the right-of-way to the injured plaintiff‘s motorcycle in violation of
In opposition, the Nicholson defendants failed to raise a triable issue of fact. They submitted an affidavit from Karen in which she averred that she came to a stop at the subject stop sign before slowly proceeding into the intersection after looking both ways. She further averred that, as she was in the intersection, she observed a motorcycle coming from her right on 223rd Street traveling “extremely fast,” but was unable to avoid the accident despite applying pressure to the vehicle‘s brakes. Karen‘s statement in her affidavit contradicted her admission made immediately following the accident, as set forth in the police accident report. Karen has not disputed the statement, attributed to her in the police accident report, that she did not see the injured plaintiff prior to impact. Therefore, the submission of Karen‘s affidavit was a belated attempt to raise feigned factual issues to avoid the consequences of her earlier admission
Contrary to the Nicholson defendants’ contention, the plaintiffs’ motion for summary judgment on the issue of liability was not premature. The Nicholson defendants failed to establish that additional discovery might lead to relevant evidence, or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiffs (see
Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability against the Nicholson defendants.
MASTRO, J.P., AUSTIN, COHEN and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court