Chang v. Fernandez

Appellate Division of the Supreme Court of New York

Chang v. Fernandez

170 A.D.2d 936, 567 N.Y.S.2d 379, 1991 N.Y. App. Div. LEXIS 2462

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 28, 1991

StatusPublished

Cited by3 cases

This text of 170 A.D.2d 936 (Chang v. Fernandez) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chang v. Fernandez, 170 A.D.2d 936, 567 N.Y.S.2d 379, 1991 N.Y. App. Div. LEXIS 2462 (N.Y. Ct. App. 1991).

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Opinion

Crew III, J.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Green, J.), entered January 17, 1990 in Orange County, which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff was a passenger in an automobile operated by Robert Fernandez when it was involved in an accident. As a result of injuries allegedly sustained by plaintiff, she commenced this action against defendant, the owner of the automobile. In support of her motion for summary judgment, defendant relies on her deposition testimony as well as a [937]*937sworn affidavit in which she avers that the driver, her brother, did not have her permission or consent, express or implied, to use her automobile. Supreme Court denied her motion, giving rise to this appeal. We have previously held that summary judgment is unavailable where, as here, the facts underlying the motion are solely within the knowledge of the moving party. In such case the movant’s version should be subjected to cross-examination at trial (Santorio v Diaz, 86 AD2d 926). Accordingly, Supreme Court’s order is affirmed.

Order affirmed, with costs. Mahoney, P. J., Weiss, Yesawich, Jr., Crew III, and Harvey, JJ., concur.

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Crew III, J.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from an order of the Supreme Court (Green, J.), entered January 17, 1990 in Orange County, which denied defendant’s motion for summary judgment dismissing the complaint.

Plaintiff was a passenger in an automobile operated by Robert Fernandez when it was involved in an accident. As a result of injuries allegedly sustained by plaintiff, she commenced this action against defendant, the owner of the automobile. In support of her motion for summary judgment, defendant relies on her deposition testimony as well as a [937]*937sworn affidavit in which she avers that the driver, her brother, did not have her permission or consent, express or implied, to use her automobile. Supreme Court denied her motion, giving rise to this appeal. We have previously held that summary judgment is unavailable where, as here, the facts underlying the motion are solely within the knowledge of the moving party. In such case the movant’s version should be subjected to cross-examination at trial (Santorio v Diaz, 86 AD2d 926). Accordingly, Supreme Court’s order is affirmed.

Order affirmed, with costs. Mahoney, P. J., Weiss, Yesawich, Jr., Crew III, and Harvey, JJ., concur.

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Bluebook (online)

170 A.D.2d 936, 567 N.Y.S.2d 379, 1991 N.Y. App. Div. LEXIS 2462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chang-v-fernandez-nyappdiv-1991.

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