Lopez-Cedeno v. D.L. Peterson Trust

2021 NY Slip Op 05293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 2021
• Docket: Index No. 23207/19E Appeal No. 14262 Case No. 2021-01254
• Status: Published

Opinion

Lopez-Cedeno v D.L. Peterson Trust (2021 NY Slip Op 05293)

Lopez-Cedeno v D.L. Peterson Trust

2021 NY Slip Op 05293

Decided on October 05, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 05, 2021
Before: Renwick, J.P., Gische, Kapnick, Kennedy, Shulman, JJ.

Index No. 23207/19E Appeal No. 14262 Case No. 2021-01254

[*1]Franciellis D. Lopez-Cedeno, Plaintiff-Respondent,

v

D.L. Peterson Trust, Defendant, Francisco A. Nunez, Defendant-Appellant.

Fleischner Potash LLP, New York (Deanna E. Hazen of counsel), for appellant.

Burns & Harris, New York (Mariel T. Crippen of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered October 21, 2020, which, to the extent appealed from as limited by the briefs, dismissed defendant Nunez's comparative negligence affirmative defense, unanimously affirmed, without costs.

Defendant Francisco A. Nunez does not dispute on appeal that plaintiff established her prima facie case of negligence on the issue of his liability (see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]).

Given the facts here, granting dismissal of the comparative negligence affirmative defense was not premature (see Urena v GVC Ltd., 160 AD3d 467, 467-468 [1st Dept 2018]). Defendant Nunez did not raise a question of fact as to whether plaintiff's driving contributed to the accident. Rather, he speculates that because it was raining on the date of the accident, there is a possibility that the way plaintiff stopped raises an issue of fact. Nunez, however, failed to show, other than through conjecture, how additional discovery would be relevant to his comparative negligence affirmative defense. The motion court, therefore, properly dismissed that defense (see generally Neryaev v Solon, 6 AD3d 510, 510 [2d Dept 2004]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 5, 2021