Opinion
2012-02-28
Michael MARAGOS, plaintiff, v. Tetsuya SAKURAI, appellant, et al., defendant.
Richard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for appellant.
In an action to recover damages for personal injuries, the defendant Tetsuya Sakurai appeals from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated August 2, 2011, as denied his unopposed motion for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion of the defendant Tetsuya Sakurai for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against him is granted.
CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.” Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney's affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229; Carniol v. Carniol, 288 A.D.2d 421, 422, 733 N.Y.S.2d 485; Finnegan v. Staten Is. R.T. Operating Auth., 251 A.D.2d 539, 540, 674 N.Y.S.2d 734; see also Fowler v. New York City Tr. Auth., 245 A.D.2d 416, 416, 666 N.Y.S.2d 459; Standard Fruit & S.S. Co., Div. of Castle & Cooke v. Russo, 67 A.D.2d 970, 970, 413 N.Y.S.2d 455). Here, the motion of the defendant Tetsuya Sakurai (hereinafter the appellant) was supported by, among other things, an attorney's affirmation, all of the pleadings, and the transcripts of the deposition testimony of the three parties to this action. Contrary to the Supreme Court's determination, under the circumstances of this case, the absence of an affidavit, while a defect in the appellant's motion, was not fatal to the motion ( see Alvarez v. Prospect Hosp., 68 N.Y.2d at 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Olan v. Farrell Lines, 64 N.Y.2d at 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229; Carniol v. Carniol, 288 A.D.2d at 422, 733 N.Y.S.2d 485; Finnegan v. Staten Is. R.T. Operating Auth., 251 A.D.2d at 540, 674 N.Y.S.2d 734; see also Fowler v. New York City Tr. Auth., 245 A.D.2d at 416, 666 N.Y.S.2d 459; Standard Fruit & S.S. Co., Div. of Castle & Cooke v. Russo, 67 A.D.2d at 970, 413 N.Y.S.2d 455).
Turning to the merits, the operator of a motor vehicle has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident ( see Balducci v. Velasquez, 92 A.D.3d 626, 938 N.Y.S.2d 178, 2012 N.Y. Slip Op. 00921 [2012]; Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545). Here, in support of his summary judgment motion, the appellant made a prima facie showing that he did not breach this duty in connection with the subject accident. The appellant submitted evidence in the form of the parties' deposition testimony establishing that he was decelerating as he was approaching his exit, and the vehicle in front of his was slowing down, when the plaintiff's vehicle, which had been struck in the rear by the vehicle of the defendant Mark E. Gargano, was propelled into the appellant's vehicle, striking it in the rear. Neither the plaintiff nor Gargano opposed the appellant's motion and, thus, no triable issue of fact was raised in opposition. Accordingly, the Supreme Court should have granted the appellant's motion for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against him.