Revels v. Schoeps

Appellate Division of the Supreme Court of New York

Revels v. Schoeps

140 A.D.3d 661, 33 N.Y.S.3d 721

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 30, 2016

Docket1622 305497/12

StatusPublished

Cited by1 cases

This text of 140 A.D.3d 661 (Revels v. Schoeps) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Revels v. Schoeps, 140 A.D.3d 661, 33 N.Y.S.3d 721 (N.Y. Ct. App. 2016).

Pincite

Opinion

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered October 9, 2014, which, to the extent appealed from as limited by the briefs, granted the cross motion of defendants Sherman Avenue Six Inc. and Reynaldo Mendoza for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a *662 matter of law. Defendants submitted, inter alia, the testimony of defendant Mendoza that, with plaintiff as his passenger, he was crossing the intersection at a moderate speed with the green light in his favor, when codefendant Schoeps, who was traveling in the opposite direction, suddenly turned across the intersection in front of him while attempting to make a left turn. Mendoza’s testimony indicated that he was already in, or very nearly in, the intersection when Schoeps suddenly turned left, and that although he applied the brakes, he was unable to avoid the collision (see e.g. Foreman v Skeif, 115 AD3d 568 [1st Dept 2014]).

In opposition, plaintiff failed to raise a triable issue of fact. She argued to the motion court that it was undisputed that Mendoza saw Schoeps’s vehicle prior to the collision, yet she did not come forward with evidence indicating that Mendoza had a reasonable opportunity to avoid the collision (compare Raposo v Raposo, 250 AD2d 420 [1st Dept 1998]). Plaintiff’s argument that Mendoza failed to reduce his speed when passing through the intersection was conclusory and unsupported (see Foreman at 569), and at his deposition, Schoeps conceded that he simply did not see Mendoza’s car before attempting a left turn, and that his view of oncoming traffic was obscured. The unsworn police accident report was hearsay evidence and insufficient to defeat the cross motion (see Kajoshaj v Greenspan, 88 AD2d 538 [1st Dept 1982]).

We have considered plaintiff’s remaining arguments, including that defendants’ cross motion should not have been considered since it was a successive motion for summary judgment, and find them unavailing.

Concur — Mazzarelli, J.P., Renwick, Moskowitz, Gische and Gesmer, JJ.

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Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered October 9, 2014, which, to the extent appealed from as limited by the briefs, granted the cross motion of defendants Sherman Avenue Six Inc. and Reynaldo Mendoza for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a *662 matter of law. Defendants submitted, inter alia, the testimony of defendant Mendoza that, with plaintiff as his passenger, he was crossing the intersection at a moderate speed with the green light in his favor, when codefendant Schoeps, who was traveling in the opposite direction, suddenly turned across the intersection in front of him while attempting to make a left turn. Mendoza’s testimony indicated that he was already in, or very nearly in, the intersection when Schoeps suddenly turned left, and that although he applied the brakes, he was unable to avoid the collision (see e.g. Foreman v Skeif, 115 AD3d 568 [1st Dept 2014]).

In opposition, plaintiff failed to raise a triable issue of fact. She argued to the motion court that it was undisputed that Mendoza saw Schoeps’s vehicle prior to the collision, yet she did not come forward with evidence indicating that Mendoza had a reasonable opportunity to avoid the collision (compare Raposo v Raposo, 250 AD2d 420 [1st Dept 1998]). Plaintiff’s argument that Mendoza failed to reduce his speed when passing through the intersection was conclusory and unsupported (see Foreman at 569), and at his deposition, Schoeps conceded that he simply did not see Mendoza’s car before attempting a left turn, and that his view of oncoming traffic was obscured. The unsworn police accident report was hearsay evidence and insufficient to defeat the cross motion (see Kajoshaj v Greenspan, 88 AD2d 538 [1st Dept 1982]).

We have considered plaintiff’s remaining arguments, including that defendants’ cross motion should not have been considered since it was a successive motion for summary judgment, and find them unavailing.

Concur — Mazzarelli, J.P., Renwick, Moskowitz, Gische and Gesmer, JJ.

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Bluebook (online)

140 A.D.3d 661, 33 N.Y.S.3d 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/revels-v-schoeps-nyappdiv-2016.

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