From Casetext: Smarter Legal Research

Martin v. Savage

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 2002
299 A.D.2d 903 (N.Y. App. Div. 2002)

Opinion

CA 02-00950

November 15, 2002.

Appeal from an order of Supreme Court, Erie County (Sconiers, J.), entered July 25, 2001, which denied defendant's motion seeking summary judgment dismissing the complaint.

KAMYSZ, O'NEILL, CANTWELL FEELEY, BUFFALO (KEVIN M. O'NEILL OF COUNSEL), FOR DEFENDANT-APPELLANT.

RICHARD B. SCOTT, BUFFALO, FOR PLAINTIFF-RESPONDENT.

PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, BURNS, AND GORSKI, JJ.


MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum:

Plaintiff commenced this action to recover damages for injuries she sustained when the pickup truck driven by defendant and in which she was a passenger was rear-ended by an automobile. Supreme Court erred in denying defendant's motion seeking summary judgment dismissing the complaint. In support of the motion, defendant established that he had come to a gradual stop and remained stopped at a red light for approximately 30 seconds when his pickup truck was rear-ended, thereby establishing as a matter of law that he was not negligent ( see Rubin v. Universal Ford, 250 A.D.2d 749, 750; Yusupov v. Supreme Carrier Corp., 240 A.D.2d 660; Barnes v. Lee, 158 A.D.2d 414). Plaintiff failed to raise a triable issue of fact whether defendant was negligent ( see Ruzycki v. Baker, 301 A.D.2d 48 [Nov. 15, 2002]). The affidavit of plaintiff submitted in opposition to the motion "clearly constituted an attempt to avoid the consequences of [her] prior deposition testimony by raising feigned issues of fact, and was insufficient to avoid summary judgment" ( Shpizel v. Reo Realty Constr. Co., 288 A.D.2d 291, 291).


Summaries of

Martin v. Savage

Appellate Division of the Supreme Court of New York, Fourth Department
Nov 15, 2002
299 A.D.2d 903 (N.Y. App. Div. 2002)
Case details for

Martin v. Savage

Case Details

Full title:ARLENE M. MARTIN, PLAINTIFF-RESPONDENT, v. FRANCIS L. SAVAGE…

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 15, 2002

Citations

299 A.D.2d 903 (N.Y. App. Div. 2002)
750 N.Y.S.2d 684

Citing Cases

Taillie v. Rochester Gas

Here, defendants met their burden on the motion by establishing as a matter of law that two of the five…

Stickney v. Alleca

She further testified at her deposition that she did not "remember at all" what her intention was as she…