Beaubrun v. Boltachev

111 A.D.3d 494, 974 N.Y.S.2d 782

Opinion

Order, Supreme Court, New York County (George J. Silver, J.), entered November 26, 2012, which denied the motion of defendants Anton Boltachev and Raneen Taxi, Inc. (collectively Boltachev) for summary judgment on the issue of liability, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured when, while attempting to enter Boltachev’s taxi, he was struck by a taxi driven by defendant Mbengue. The court properly determined that triable issues of fact exist inasmuch as the drivers provided conflicting accounts of the accident (see Ramos v Rojas, 37 AD3d 291 [1st Dept 2007]). Boltachev contends that his taxi was stopped when he was hit in the rear by Mbengue’s taxi. Mbengue, on the other hand, maintains that Boltachev’s taxi cut off his vehicle in order to pick up a potential customer (plaintiff). The police accident report also does not reflect damage to the rear of Boltachev’s cab, and it is not the court’s function on a motion for summary judgment to assess credibility (see id. at 292). Furthermore, even accepting Boltachev’s version of the accident, issues of fact exist as to whether Boltachev violated 34 RCNY 4-11 (c) when picking up plaintiff, and whether this violation was a proximate cause of the accident. Concur — Tom, J.E, Mazzarelli, Freedman, Richter and Feinman, JJ.