Nesper v. Goldmag Hacking Corp.

77 A.D.3d 598, 911 N.Y.S.2d 287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Paul Wooten, J.), entered December 9, 2009, which, to the extent appealed from as limited by the briefs, granted plaintiffs motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied.

Although plaintiff made a prima facie showing of entitlement to summary judgment on the issue of liability by supplying an affidavit stating that she was struck by defendant’s vehicle while crossing a street in a crosswalk with the green light, defendant met his burden of establishing the existence of material issues of fact requiring a trial by stating in his affidavit that his vehicle never struck plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Defendant’s affidavit did not contradict his statement to the police so as to warrant rejecting it as a belated attempt to avoid the consequences of an earlier admission. Accordingly, there was no basis for the grant of partial summary judgment to plaintiff. Concur—Saxe, J.P., Acosta, Freedman, Richter and Abdus-Salaam, JJ.