Fernandez v. Laret

43 A.D.3d 347, 841 N.Y.S.2d 78

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 23, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered October 12, 2006, which denied defendants’ motion and cross motion for summary judgment, unanimously reversed, on the law, without costs, the motion and cross motion granted and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The motion court improperly denied the Laret defendants’ motion for summary judgment as untimely, in view of the prior court order issued by another justice of coordinate jurisdiction extending their time to move for such relief (see Dondi v Jones, 40 NY2d 8, 15 [1976]). On the merits, the Laret defendants established their entitlement to summary judgment both as to the claim of negligence and as to whether plaintiff suffered a serious injury. Mr. Laret’s testimony that his car was stopped when struck was unrebutted by any proper evidence; plaintiffs deposition, replete with internal contradictions, was clearly coached and tailored, creating only a feigned issue of fact as to whether the Laret car was moving when the Calderon car collided with it, and was insufficient to defeat summary judgment. Furthermore, the Laret motion and the cross motion by defendants Vasquez and Calderon should have been granted based upon plaintiffs failure to demonstrate serious injury (Insurance Law § 5102 [d]) as a result of the accident. Concur— Andrias, J.E, Saxe, Williams, Gonzalez and Kavanagh, JJ.