Garzon-Victoria v. Okolo

Appellate Division of the Supreme Court of New York

Garzon-Victoria v. Okolo

116 A.D.3d 558, 983 N.Y.S.2d 718

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

DecidedApril 17, 2014

StatusPublished

Cited by6 cases

This text of 116 A.D.3d 558 (Garzon-Victoria v. Okolo) 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

Garzon-Victoria v. Okolo, 116 A.D.3d 558, 983 N.Y.S.2d 718 (N.Y. Ct. App. 2014).

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Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 4, 2013, which granted plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit stating that defendants’ yellow cab struck him as he was crossing within a crosswalk, with the pedestrian light in his favor, and after he had looked for oncoming traffic (see Cartagena v Girandola, 104 AD3d 599 [1st Dept 2013]; Beamud v Gray, 45 AD3d 257 [1st Dept 2007]).

In opposition, defendants failed to raise a triable issue of fact. Defendant driver Michael Okolo himself admits in his affidavit that both he and plaintiff spoke with the police. Because Okolo’s statement constitutes an admission against interest, it is admissible (see Penn v Kirsh, 40 AD2d 814, 814 [1st Dept 1972]). Okolo’s affidavit containing a different version of the facts appears to have been submitted to avoid the consequences of his prior admission to the police officer and, thus, is insufficient to defeat plaintiff’s motion for partial summary judgment (see Buchinger v Jazz Leasing Corp., 95 AD3d 1053, 1053 [2d Dept 2012] ; Abramov v Miral Corp., 24 AD3d 397, 398 [2d Dept 2005]).

We have reviewed defendants’ remaining contentions and find them unavailing. Concur — Friedman, J.E, Sweeny, Andrias, Gische and Clark, JJ.

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Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about April 4, 2013, which granted plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit stating that defendants’ yellow cab struck him as he was crossing within a crosswalk, with the pedestrian light in his favor, and after he had looked for oncoming traffic (see Cartagena v Girandola, 104 AD3d 599 [1st Dept 2013]; Beamud v Gray, 45 AD3d 257 [1st Dept 2007]).

In opposition, defendants failed to raise a triable issue of fact. Defendant driver Michael Okolo himself admits in his affidavit that both he and plaintiff spoke with the police. Because Okolo’s statement constitutes an admission against interest, it is admissible (see Penn v Kirsh, 40 AD2d 814, 814 [1st Dept 1972]). Okolo’s affidavit containing a different version of the facts appears to have been submitted to avoid the consequences of his prior admission to the police officer and, thus, is insufficient to defeat plaintiff’s motion for partial summary judgment (see Buchinger v Jazz Leasing Corp., 95 AD3d 1053, 1053 [2d Dept 2012] ; Abramov v Miral Corp., 24 AD3d 397, 398 [2d Dept 2005]).

We have reviewed defendants’ remaining contentions and find them unavailing. Concur — Friedman, J.E, Sweeny, Andrias, Gische and Clark, JJ.

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Bluebook (online)

116 A.D.3d 558, 983 N.Y.S.2d 718, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garzon-victoria-v-okolo-nyappdiv-2014.

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