Cruz v. Budget Rent A Car

259 A.D.2d 368, 687 N.Y.S.2d 59, 1999 N.Y. App. Div. LEXIS 2771

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1999
• Status: Published

Opinion

Appeal from order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered August 12, 1997, which, insofar as appealed from, denied plaintiffs cross motion for summary judgment, unanimously dismissed as untimely, without costs. Order, same court and Justice, entered on or about November 3, 1997, which, insofar as appealable, implicitly denied plaintiffs motion to renew, unanimously affirmed, without costs.

The first appeal is untimely because the notice of appeal was served more than 30 days after service of a copy of the order with notice of entry (CPLR 5513 [a]). Concerning the second appeal, the only “new” evidence that plaintiff submitted on her motion to renew was the affidavit of the surviving plaintiff that she was wearing a seatbelt at the time of the accident, a fact obviously known to her at the time of the original motion seeking, among other things, dismissal of defendant-respondent City’s affirmative defense under Vehicle and Traffic Law § 1229-c (8). In any event, were we to reach the merits on the basis of the record generated by both of plaintiffs motions, we would find that the award of damages against two defaulting defendants after inquest does not have any estoppel effect in the severed action against the City, and that issues of fact exist as to whether the allegedly defective conditions in the roadway and street lights were a proximate cause of the accident, whether the deceased plaintiff was comparatively negligent in getting out of the car and pushing it aside, and whether the surviving plaintiff was wearing a seatbelt. Concur — Rosenberger, J. P., Williams, Tom and Mazzarelli, JJ.