Martin v. Savage

299 A.D.2d 903, 750 N.Y.S.2d 684, 2002 N.Y. App. Div. LEXIS 10966

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2002
• Status: Published

Opinion

Appeal from an order of Supreme Court, Erie County (Sconiers, J.), entered July 25, 2001, which denied defendant’s motion seeking summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when the pickup truck driven by defendant and in which she was a passenger was rear-ended by an automobile. Supreme Court erred in denying defendant’s motion seeking summary judgment dismissing the complaint. In support of the motion, defendant established that he had come to a gradual stop and remained stopped at a red light for approximately 30 seconds when his pickup truck was rear-ended, thereby establishing as a matter of law that he was not negligent (see Rubin v Universal Ford, 250 AD2d 749, 750; Yusupov v Supreme Carrier Corp., 240 AD2d 660; Barnes v Lee, 158 AD2d 414). Plaintiff failed to raise a triable issue of fact whether defendant was negligent (see Ruzycki v Baker, 301 AD2d 48). The affidavit of plaintiff submitted in opposition to the motion “clearly constituted an attempt to avoid the consequences of [her] prior deposition testimony by raising feigned issues of fact, and was insufficient to avoid summary judgment” (Shpizel v Reo Realty & Constr. Co., 288 AD2d 291, 291). Present — Pigott, Jr., P.J., Green, Scudder, Burns and Gorski, JJ.