2019 WL 1338267
Supreme Court, Appellate Division, First Department, New York.
Giovanni G. THOMPSON, Plaintiff–Appellant,
v.
COCA–COLA BOTTLING CO., et al., Defendants–Respondents.
8800
|
Index 26064/15E
|
ENTERED: MARCH 26, 2019
Synopsis
Background: Motorist, who was involved in auto accident, brought negligence action against tractor trailer driver. The Supreme Court, Bronx County, Fernando Tapia, J., denied motorist’s motion for partial summary judgment on issue of liability, and motorist appealed.

[Holding:] The Supreme Court, Appellate Division, First Department, held that motorist made a prima facie showing of negligence on the part of tractor trailer driver.

Reversed.

West Headnotes (3)

[1]
Automobiles

Motorist made a prima facie showing of negligence on the part of tractor trailer driver by submitting a police report of the incident containing driver’s statement that he backed into motorist’s vehicle, an admission against interest.
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[2]
Judgment

Tractor trailer driver’s summary judgment affidavit was insufficient to raise triable issue of fact so as to preclude grant of summary judgment to motorist on issue of liability in personal injury action, stemming from auto accident; driver’s affidavit contained version of the facts which seemed tailored to avoid consequences of his prior admission to police officer, that he backed into motorist’s vehicle, was premised on speculation, and was inconsistent with the photographs of the damage to motorist’s car.
Cases that cite this headnote

[3]
Judgment

Motorist was not required to demonstrate his own freedom from comparative negligence in order to be entitled to summary judgment, as to liability of tractor trailer driver, who backed into motorist’s car, for accident.
Cases that cite this headnote

Attorneys and Law Firms
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Goldberg Segalla, White Plains (Jill C. Owens of counsel), for respondents.
Manzanet–Daniels, J.P., Gische, Gesmer, Singh, Moulton, JJ.
Opinion

*1 Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered December 18, 2017, which denied plaintiff’s motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

[1]Plaintiff made a prima facie showing of negligence on the part of defendants by submitting a police report of the incident containing defendant Adorno’s statement that he backed into plaintiff’s vehicle, an admission against interest (see Cruz v. Skeritt, 140 A.D.3d 554, 554, 32 N.Y.S.3d 504 [1st Dept. 2016] ). Plaintiff also submitted his own affidavit, which stated, consistent with the police report, that his vehicle was stopped, and that defendant backed his tractor trailer into the front passenger side of plaintiff’s vehicle as plaintiff continuously sounded his horn.

[2]Defendant’s submissions in opposition to the motion were insufficient to raise a triable issue of fact, because defendant Adorno’s affidavit contains a version of the facts which seems tailored to avoid the consequences of his prior admission to the police officer, is premised on speculation, and is inconsistent with the photographs of the damage to plaintiff’s car (Garzon–Victoria v. Okolo, 116 A.D.3d 558, 983 N.Y.S.2d 718 [1st Dept. 2014] ).

[3]We note that plaintiff was not required to demonstrate his own freedom from comparative negligence in order to be entitled to summary judgment as to defendants’ liability (Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ).

We have considered defendants’ remaining contentions and find them unavailing.

All Citations
— N.Y.S.3d —-, 2019 WL 1338267, 2019 N.Y. Slip Op. 02285