Persaud v. Darbeau

13 A.D.3d 347, 786 N.Y.S.2d 196, 2004 N.Y. App. Div. LEXIS 14881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Roña R. Mahadeo, as administratrix of the estate of Sesenarine Persaud, appeals from an order of the Supreme Court, Kings County (Rosenberg, J.), dated December 9, 2003, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

Ordered that the order is reversed, on the law, with one bill of costs, the motion is granted, the complaint and all cross claims insofar as asserted against the defendant Roña R. Mahadeo, as administratrix of the estate of Sesenarine Persaud, are dismissed, and the action against the remaining defendants is severed.

The defendant Roña R. Mahadeo, as administratrix of the estate of Sesenarine Persaud, established her entitlement to judgment as a matter of law by demonstrating that the negligence of the defendant Ronald G. Moe was the sole proximate cause of the intersection accident that gave rise to the plaintiffs injuries. The evidence established that Moe, while under the influence of alcohol, proceeded through a red light and struck the left side of the decedent’s vehicle after the decedent’s vehicle entered the intersection on a green light. There was no evidence to support the conclusory allegations that the decedent saw the Moe vehicle coming or could have avoided the collision (see Merritt v Pyne, 248 AD2d 600 [1998]; Delasoudas v Koudellou, 236 AD2d 581 [1997]; Cassidy v Valenti, 211 AD2d 876 [1995]). The opposition was entirely speculative and was insufficient to defeat the motion (see Wilkins v Davis, 305 AD2d 584 [2003]; Gillinder v Hemmes, 298 AD2d 493 [2002]; Lestingi v Holland, 297 AD2d 627 [2002]; Casanova v New York City Tr. Auth., 279 AD2d 495 [2001]). Prudenti, P.J., H. Miller, Spolzino and Lifson, JJ., concur.