Decided March 22, 2006.
Plaintiff, in this pedestrian knockdown case, moves for partial summary judgment on the issue of liability, pursuant to CPLR Rule 3212. Plaintiff, in his September 23, 2004 examination before trial [exhibit G of motion] and his affidavit of merit [exhibit H of motion], states that on June 2, 1998, at approximately 6:30 P.M., he was pedestrian walking southbound on Bond Street, Brooklyn, New York, when struck by the vehicle owned by defendant Rose, while in a crosswalk at the intersection of Bond Street and Dean Street. Mr. Millan was struck when defendant's vehicle failed to stop at a stop sign before the crosswalk. In his affidavit, Mr. Millan says, "I did nothing to contribute to the accident. The accident occurred through the negligence of the driver of the defendant's vehicle in causing the vehicle to strike me while I was carefully walking in a crosswalk." Plaintiff spoke to the driver of the truck and took down the license plate number. Defendant's affirmation in opposition, contains only an attorney's conclusory and speculative assertions about plaintiff's pleadings, examination before trial and bill of particulars. The attorney's affirmation in opposition to the instant motion for summary judgment is insufficient to raise triable issues of fact to defeat plaintiff's summary judgment motion. For the reasons to follow, plaintiff is entitled to partial summary judgment on the issue of liability.
Summary judgment standard
The proponent of summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. See Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986); Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v. Williams, 84 AD2d 648, 649 (3rd Dept 1981); Greenburg v. Manlon Realty, 43 AD2d 968, 969 (2nd Dept 1974); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).
CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law, "that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v. Dino Artie's Automatic Transmission Co., 168 AD2d 610 (2nd Dept 1990). Summary judgment shall be granted only where there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. Friends of Animals, Inc., v. Associated Fur Mfrs., 46 NY2d 1065 (1979).
In the instant case, defendants' motion for summary judgment makes a prima facie showing of entitlement to judgment as a matter of law. Further, the Court of Appeals instructed in Andre v. Pomeroy, 35 NY2d 361 (1974), at 364, that "when there is no genuine issue to be resolved at trial, the case should be summarily decided . . ."
In Zabusky v. Cochran, 234 AD2d 542 (2nd Dept 1996), plaintiff was crossing a street within a crosswalk and the traffic light in her favor. The defendant admitted in a deposition that she struck the plaintiff while attempting a left turn and that her view of the crosswalk was unobstructed. The Zabusky facts are very similar to those of the instant case. The Zabusky Court held, at 542:
The evidence submitted by the plaintiffs was sufficient to establish their entitlement to summary judgment on the issue of liability ( see e.g., Jacobs v. Schleicher, 124 AD2d 785 [2nd Dept 1986]; cf., Thoma v. Ronai, 82 NY2d 736). The affirmation submitted by the defendants' attorney was without evidentiary value ( see Zuckerman v. City of New York, 49 NY2d 557; Buck v. Pratt, 226 AD2d 661 [2nd Dept 1996]), and the defendants failed to present any evidence in admissible form sufficient to raise a triable issue of fact with respect to their claim that the plaintiff pedestrian was negligent.
The Motor Vehicle Accident Indemnification Corporation (MVAIC) is representing defendant Rose, the owner of the alleged truck that struck plaintiff, due to the cancellation of Rose's insurance coverage for her truck, prior to the accident [exhibit E of motion]. MVAIC filed and served a verified answer for defendant Rose [exhibit F of motion]. All papers list an address on Clarendon Road, Brooklyn, NY for defendant Rose.
Defendant's counsel claims in her affirmation in opposition that "[i]t is well settled that plaintiffs in actions where MVAIC appears should be put to their proof at trial subject to cross-examination by MVAIC." Counsel cites Torres v. O'Keefe, 35 Misc 2d 347 (App Term, 1st Dept 1962), in support of this assertion. However, the Torres Court, at 348, instructed that "where MVIAC interposes an answer on behalf of a named defendant who cannot be located and on its own behalf, is summary judgment warranted in favor of a plaintiff." The following year, in Monje v. Motor Vehicle Accident Indemnification Corp., 42 Misc 2d 817 (App Term, 1st Dept 1963), the Court held that:
The Motor Vehicle Accident Indemnification Corporation is not, as a matter of law, immune from the granting of summary judgment against it in a negligence case. The cases cited by it in support of that proposition hold only that summary judgment will not be granted where the facts concerning the accident are solely within the knowledge of the moving party, and where the person whose actions gave rise to the liability asserted is not within the control of or available to the defendant (Torres v. O'Keefe, 35 Misc 2d 347; Bandi v. Noonan, NY L.J., April 12, 1961, p. 13, col. 7; DeFreitas v. Root, NY L.J., July 6, 1962, p. 8, col. 3; Doody v. MVAIC, NY L.J., May 1, 1961, p. 17, col. 3). In the instant case MVAIC could have presented an affidavit from defendant Rose to attempt to refute the claims of plaintiff. They failed to do so.
When the party moving for summary judgment has made its showing of its entitlement to summary judgement, the burden then shifts to the opposing party to demonstrate the existence of triable issues of fact. See Alvarez v. Prospect Hospital, supra; Winegrad v. New York University Medical Center, supra. It is black letter law that in a CPLR § 3212 motion for summary judgment an affirmation by an attorney who has no personal knowledge of the facts has no evidentiary value. See Zuckerman, supra; Stahl v. Stralberg, 287 AD2d 613 (2nd Dept 2001); Deronde Products Inc. v. Steve General Contractor Inc., 302 AD2d 989 (4th Dept. 2003). In Indig v. Finkelstein, 23 NY2d 728 (1968), the Court clearly instructed, at 729, that the "burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified (citations omitted)." This is all that defense counsel has done in the instant case. Defense counsel has not submitted any admissible evidence rebutting plaintiff's prima facie showing of entitlement to judgment as a matter of law and demonstrating the existence of triable issues of fact. The conclusory and speculative claims of defense counsel in her affirmation in opposition to plaintiff's motion for summary judgment are insufficient to raise triable issues of fact. Miller v. James, 262 AD2d 617 (2nd Dept 1999); Campo-Joseph v. King, 277 AD2d 193 (2nd Dept 2000).
Therefore, based upon the foregoing, there are no triable issues of fact. Plaintiff is entitled to partial summary judgment on the issue of liability.
Accordingly, it is
ORDERED, that plaintiff's motion for partial summary judgement on the issue of liability, pursuant to CPLR Rule 3212, is granted.
This constitutes the Decision and Order of the Court.