Allen v. Zecca Mirror & Glass, Inc.

106 A.D.3d 596, 965 N.Y.S.2d 350

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 23, 2013
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered August 9, 2012, which denied defendant Zecca Mirror and Glass, Inc.’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

It is uncontested that plaintiff, while riding his bicycle down Boone Avenue in the Bronx, ran into the back of defendant Zecca’s legally parked and unoccupied blue van. While plaintiff asserts that he was struck in the rear tire by a white van which was backing out of the garage area of Zecca’s property, causing him to lose control and strike defendant’s blue van (an assertion which defendant and its witnesses deny), Zecca’s owner unequivocally testified that Zecca did not own a white van, and that all of Zecca’s vans were the same as the blue van struck by plaintiff. In response, plaintiff failed to present any evidence connecting the alleged white van to Zecca, sufficient to impose liability (see Pulka v Edelman, 40 NY2d 781 [1976]).

Plaintiffs spoliation argument, as well as several other arguments, are improperly raised for the first time on appeal and do not present pure questions of law. Concur—Gonzalez, PJ., Friedman, Moskowitz and Feinman, JJ.