Cashman v. Berroa

101 A.D.3d 563, 955 N.Y.2d 511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2012
• Status: Published

Opinion

In this personal injury action, plaintiff alleges that he was struck by the side mirror of a van driven by defendant Berroa, and that Berroa was driving the van while in the course of his employment with defendant Parkchester.

Defendant Parkchester made a prima facie showing of its entitlement to judgment as a matter of law with evidence that Berroa owned the offending vehicle and was not employed by Parkchester at the time of the accident.

In opposition, plaintiff failed to raise a triable issue of fact. The uncertified public safety report plaintiff submitted is not in admissible form and thus lacks evidentiary value (see Coleman v Maclas, 61 AD3d 569, 569 [1st Dept 2009]). The affidavit from a nonparty witness fails to raise a material issue of fact, as the witness never indicated who owned or drove the van he saw around the time of the accident.

Plaintiff has not shown that additional discovery will likely lead to evidence warranting denial of Parkchester’s motion (see Smith v Andre, 43 AD3d 770, 771 [1st Dept 2007]; CPLR 3212 [f]). Concur — Andrias, J.P., Saxe, Moskowitz, Freedman and Abdus-Salaam, JJ.