Licurgo-Cruz v. Ahmed

118 A.D.3d 420, 987 N.Y.S.2d 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 3, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mitchell Danzinger, J.), entered June 14, 2013, which denied plaintiffs motion for partial summary judgment, without prejudice to making such motion following discovery, unanimously affirmed, without costs.

Plaintiff’s own motion papers failed to make a prima facie showing of entitlement to judgment as a matter of law, and so he was not entitled to summary judgment regardless of the adequacy of the opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Moreover, the court properly found that plaintiff’s motion was premature, as the agreed-upon, so-ordered discovery, including plaintiffs own deposition and independent medical examination, had not yet occurred. Plaintiff has exclusive knowledge as to his speed, why he was riding his bicycle in the bus lane, and why he chose to pass defendants’ cab on the right side when it pulled over and stopped to let out a passenger, and defendants are entitled to explore these and other issues during discovery.

Concur — Tom, J.E, Renwick, Andrias, Freedman and Clark, JJ.