Garcia v. Mondragon

159 A.D.2d 481

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1990
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendants Gisela C. Mondragon and Candelario Alvarenga appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated August 23, 1988, which denied their motion for summary judgment dismissing the complaint and all cross claims.

Ordered that the order is affirmed, with costs to the defendant-respondent Bohn.

In this action to recover damages for personal injuries sustained in an automobile collision, the plaintiffs assert in their complaint that as the result of the negligent operation by the appellant Gisela Mondragon of an automobile owned by the appellant Candelario Alvarenga, the appellants are liable for certain injuries sustained by the plaintiff Lucina Garcia in the accident.

The Supreme Court denied the appellants’ motion for summary judgment, noting that it was not supported by an affidavit in proper evidentiary form. However, the motion was supported by portions of the transcript of the pretrial depositions of the plaintiff Lucina Garcia, and of the defendants Philip Macaluso and Lawrence Bohn. Generally, a party may establish the right to summary judgment based upon such supporting proof (see, e.g., Olan v Farrell Lines, 64 NY2d 1092; Gaeta v New York News, 62 NY2d 340; Kempster v Child Protective Servs. of Dept. of Social Servs., 130 AD2d 623, 626). Nevertheless, the appellants did not establish their right to summary judgment in this particular case, because the plaintiffs demonstrated the existence of issues of fact as to whether Gisela Mondragon’s operation of the vehicle was negligent, to wit, whether she negligently failed to signal other motorists and whether such negligence might have been a substantial factor in the happening of the accident. Mangano, J. P., Bracken, Eiber and Harwood, JJ., concur.