James v. LeFeber

275 A.D.2d 973, 715 N.Y.S.2d 193, 2000 N.Y. App. Div. LEXIS 9508

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 2000
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: At approximately 6:30 p.m. on October 2, 1996, Val Patterson failed to stop at an intersection because of complications arising from his diabetic condition. Patterson’s vehicle struck another vehicle, which then struck the vehicle operated by plaintiffs decedent. Patterson has no memory of the accident or his activities for several hours before the accident. Plaintiff commenced an action against Patterson and the driver of the vehicle struck by Patterson. After concluding depositions in that action, plaintiff commenced the instant action alleging that defendants, who employed Patterson as a farm laborer, are liable for his negligence under the doctrine of respondeat superior because he was operating his vehicle in the course of his employment.

Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint. Defendants sustained their initial burden of establishing as a matter of law that they had not directed Patterson’s activities for at least two hours before the accident. Plaintiff's unsubstantiated allegations and assertions are insufficient to defeat defendants’ motion (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). The contention of plaintiff that facts essential to justify his opposition to the motion are within the exclusive possession of defendants (see, CPLR 3212 [f]; Terranova v Emil, 20 NY2d 493, 497) is unavailing. Defendants have been deposed by plaintiff and, in any event, another person having knowledge of Patterson’s activities has also been deposed by plaintiff. (Appeal from Order of Supreme Court, Livingston County, Cicoria, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Lawton, JJ.