Noriega v. Sauerhaft

5 A.D.3d 121, 771 N.Y.S.2d 895, 2004 N.Y. App. Div. LEXIS 2077

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton Tingling, J.), entered on or about July 3, 2002, which denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiffs cross motion for partial summary judgment on the issue of fault, unanimously affirmed, without costs.

Plaintiff, injured when defendant’s parked car rolled down an incline and hit him, was properly granted summary judgment on the issue of fault, based on the affidavit of a responding police officer stating that he found defendant’s car in neutral (see Bouchard v Canadian Pac., 267 AD2d 899, 902 [1999]), and the absence of evidence that the car had been vandalized or burglarized. Issues of fact as to whether plaintiff sustained serious injuries are raised by evidence of, inter alia, a torn meniscus requiring surgery (see Rangel-Vargas v Vurchio, 289 AD2d 92 [2001]). Concur—Andrias, J.P., Ellerin, Williams and Gonzalez, JJ.