deVoil v. Wallace

221 A.D.2d 411, 634 N.Y.S.2d 384, 1995 N.Y. App. Div. LEXIS 11977

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated September 14, 1994, which granted the plaintiffs motion for summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

"While negligence cases do not generally lend themselves to resolution by motion for summary judgment, such a motion will be granted where, as here, the facts clearly point to the negligence of one party without any fault or culpable conduct by the other party” (Morowitz v Naughton, 150 AD2d 536, 537). Here, the defendant was unquestionably responsible for causing the accident while the plaintiff was free from culpable conduct. Accordingly, the Supreme Court properly granted the plaintiffs motion for summary judgment on the issue of liability (see, Cummins v Rose, 185 AD2d 839).

Contrary to the defendant’s contention, the Supreme Court did not err in granting the plaintiffs motion for summary judgment prior to the taking of the plaintiffs deposition since the plaintiff stated in an affidavit that she had no recollection of the accident. Bracken, J. P., O’Brien, Ritter, Friedmann and Goldstein, JJ., concur.