F M Bus Van Corp.
v.
Arias

Appellate Division of the Supreme Court of New York, Second DepartmentMay 8, 1995
215 A.D.2d 431 (N.Y. App. Div. 1995)
215 A.D.2d 431626 N.Y.S.2d 257

May 8, 1995

Appeal from the Supreme Court, Queens County (Dunkin, J.).


Ordered that the order is reversed, with costs and the defendant's motion for summary judgment is denied.

On October 22, 1989, a bus used by the plaintiff in its transport business was involved in a collision with the defendant's vehicle on the Queensborough Bridge. The collision rendered the bus inoperable. The plaintiff thereafter commenced this action to recover damages, inter alia, for lost income.

The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff had executed a release of all claims arising out of the underlying accident. The only documentary evidence submitted by the defendant in support of its motion was a check in the amount of $13,723.41 bearing the notation "property damage".

Because the evidence submitted by the defendant did not exclude the possibility that any release entered into by the parties related only to the plaintiff's claim for property damage, it was error for the Supreme Court to conclude that no triable issues of fact existed with regard to the plaintiff's claim for lost income (see, CPLR 3212 [b]). Mangano, P.J., O'Brien, Ritter, Pizzuto and Florio, JJ., concur.