Loperena v. Buona

309 A.D.2d 592, 765 N.Y.S.2d 355, 2003 N.Y. App. Div. LEXIS 10557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 14, 2003
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered May 28, 2002, which, in an action for personal injuries sustained in a hit-and-run accident involving a taxicab owned and operated by defendants, granted plaintiff’s motion for partial summary judgment as to liability, and order, same court and Justice, entered January 14, 2003, which, insofar as appealable, denied defendants’ motion to renew, unanimously affirmed, with one bill of costs.

Plaintiff made a prima facie showing of entitlement to partial summary judgment as to liability by way of his pleadings and affidavit describing the time, place and hit-and-run circumstances of the accident, the police accident report showing the license plate number of the vehicle that struck him and confirming the time and place of the accident, and the record of the individual defendant’s plea of guilty to the crime of leaving the scene of an accident. In opposition, defendants simply presented an affirmation from counsel that did not dispute liability. Defendants’ motion to renew was properly denied since it failed to adduce a reasonable justification for this failure to adduce evidence in opposition (CPLR 2221 [e] [3]). In any event, defendant driver’s affidavit in support of renewal that he was not driving the subject taxicab when plaintiff was struck and had no knowledge of the incident fails to explain his plea of guilty to leaving the scene of an accident, and is otherwise insufficient to raise a bona fide issue of fact as to liability. Concur — Nardelli, J.P., Mazzarelli, Andrias, Marlow and Gonzalez, JJ.