Mendez v. Queens Plumbing Supply, Inc.

39 A.D.3d 260, 833 N.Y.S.2d 71

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 2007
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Dianne T. Renwick, J.), entered September 25, 2006, which, upon reargument of a prior order denying plaintiff partial summary judgment on “liability negligence,” vacated that order and granted the relief requested, directing plaintiff to proceed on the issues of serious injury and damages, unanimously affirmed, without costs.

The court properly granted reargument upon a showing that it had “overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision” Roland v City of New York, 212 AD2d 674, 674 [1995]; see CPLR 2221 [d] [2]). The court had previously misapprehended the facts when it precluded the operator of each vehicle from testifying about negligent operation by the other. Plaintiff’s deposition testimony revealed her lack of knowledge of the comparative negligence on the part of the operators. Appellants, the owner and operator of the vehicle in which plaintiff was a passenger, failed to meet their burden of demonstrating issues of fact as to fault through submission of evidence in admissible form, as opposed to mere speculation or conclusory allegations.

We have considered appellants’ remaining arguments and find them without merit. Concur—Saxe, J.E, Friedman, Sweeny, McGuire and Malone, JJ.