Boulosv.Lerner-Harrington

Supreme Court, Appellate Division, Second Department, New York.Jan 21, 2015
2 N.Y.S.3d 526 (N.Y. App. Div. 2015)
2 N.Y.S.3d 526124 A.D.3d 7092015 N.Y. Slip Op. 486

01-21-2015

Nadia BOULOS, respondent, v. Suzanne M. LERNER–HARRINGTON, also known as Suzanne M. Harrington, also known as Suzanne M. Lerner, et al., defendants, Michael C. Johnson, et al., appellants.

David S. Kritzer & Associates, P.C., Smithtown, N.Y., for appellants. Weiser & Associates LLP, New York, N.Y. (Edward V. Spark and Nicole S. Weiser of counsel), for respondent.


David S. Kritzer & Associates, P.C., Smithtown, N.Y., for appellants.

Weiser & Associates LLP, New York, N.Y. (Edward V. Spark and Nicole S. Weiser of counsel), for respondent.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

Opinion In an action to recover damages for personal injuries, the defendants Michael C. Johnson and United Parcel Service, Inc., appeal from an order of the Supreme Court, Suffolk County (Farneti, J.), dated November 12, 2013, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.On June 30, 2009, the plaintiff, while operating a vehicle near the intersection of Middle Country Road and Fairview Street in Suffolk County, allegedly was injured when a truck owned by the defendant United Parcel Service, Inc. (hereinafter UPS), and operated by the defendant Michael C. Johnson collided with her vehicle as she was in the process of making a right turn. Johnson and UPS (hereinafter together the UPS defendants) moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the motion. The UPS defendants appeal.

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident (see Calderon–Scotti v. Rosenstein, 119 A.D.3d 722, 723, 989 N.Y.S.2d 514 ; Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282 ). In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party (see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 ).

Here, in moving for summary judgment, the UPS defendants submitted evidence, including a transcript of the deposition testimony of the plaintiff, which presented conflicting accounts as to how and why the subject accident occurred. The defendants thus failed to establish, prima facie, that Johnson was not negligent in the operation of UPS's vehicle (see generally Bullock v. Calabretta, 119 A.D.3d 884, 989 N.Y.S.2d 862 ; Bonaventura v. Galpin, 119 A.D.3d 625, 988 N.Y.S.2d 886 ; Veltri v. Solomon, 107 A.D.3d 699, 966 N.Y.S.2d 490 ; Allen v. Echols, 88 A.D.3d 926, 931 N.Y.S.2d 402 ). In light of the UPS defendants' failure to meet their prima facie burden, we need not review the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Accordingly, the Supreme Court properly denied the UPS defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.