Pane v. Cisilino

2016 NY Slip Op 7858, 144 A.D.3d 567, 42 N.Y.S.3d 15

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 2016
• Docket: 2263 162093/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered March 1, 2016, which denied plaintiffs motion for summary judgment on the issue of liability with leave to renew upon the completion of discovery, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established his entitlement to judgment as a matter of law in this action for personal injuries sustained in a motor vehicle accident. Plaintiff submitted, inter alia, his affidavit averring that this was a one-car accident which occurred when defendant Cisilino lost control of the vehicle he was driving, and in which plaintiff was a passenger (see e.g. Al-Nashash v Soutra Limousine Inc., 115 AD3d 534 [1st Dept 2014]; Mughal v Rajput, 106 AD3d 886, 888 [2d Dept 2013]).

In opposition, defendants failed to raise an issue of fact. Cisilino’s averment in his affidavit that he could not recall the accident does not constitute a nonnegligent explanation for the accident (see e.g. Soto-Maroquin v Mellet, 63 AD3d 449, 450 [1st Dept 2009]). Furthermore, the mere hope that evidence sufficient to defeat the summary judgment motion may be uncovered during discovery is an insufficient basis upon which to deny the motion (see Guerrero v Milla, 135 AD3d 635 [1st Dept 2016]).

Concur—Mazzarelli, J.P., Sweeny, Andrias, Web-ber and Gesmer, JJ.