Justino v. Santiago

116 A.D.3d 411, 983 N.Y.S.2d 236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 21, 2013, which, to the extent appealable, denied defendants Doucaure Boubou’s and Mariam Et Alassane Car Service, Inc.’s (defendants) motion for leave to renew their prior cross motion for summary judgment dismissing the complaint against them, unanimously affirmed, without costs.

In this action arising from a two-vehicle accident, the motion court properly denied defendants’ motion for leave to renew since they did not provide any reason, let alone reasonable justification, for their failure to submit the deposition testimony of plaintiff Julio Justino on the prior motion (see CELR 2221 [e]). Defendants have not proffered any reason for their failure to depose this plaintiff or other relevant parties before moving for summary judgment (see Chelsea Piers Mgt. v Forest Elec. Corp., 281 AD2d 252 [1st Dept 2001]; cf. Luna v Port Auth. of N.Y. & N.J., 21 AD3d 324, 325-326 [1st Dept 2005]). In any event, even if renewal were granted, Justino’s deposition testimony would not change the prior determination that issues of fact exist as to defendant drivers’ negligence. While Justino’s testimony shows that the cab was struck on the passenger side, it is not entirely clear that the cab was stopped at a red light at the time of the accident as defendants claim. Indeed, defendant driver Boubou averred that the livery cab was moving at the time of the accident. Such conflicting evidence precludes summary judgment in defendants’ favor (see Belziti v Langford, 105 AD3d 649 [1st Dept 2013]). Concur — Friedman, J.E, Renwick, Moskowitz, Richter and Feinman, JJ.