Tuesday, July 12, 2016

An auto accident claim dismissed.

Practice point:  The Appellate Division affirmed the granting of defendants' cross-motion for summary judgment and dismissal, finding that defendants established their entitlement to judgment as a matter of law. Defendants submitted defendant-driver's testimony that, with plaintiff as his passenger, he was crossing the intersection at a moderate speed with the green light in his favor, when co-defendant, who was traveling in the opposite direction, suddenly turned across the intersection in front of him while attempting to make a left turn.

In opposition, plaintiff failed to raise a triable issue of fact. She argued to the motion court that it was undisputed that defendant-driver saw co-defendant's vehicle prior to the collision, yet she did not come forward with evidence indicating that defendant-driver had a reasonable opportunity to avoid the collision. Plaintiff's argument that defendant-driver failed to reduce his speed when passing through the intersection was conclusory and unsupported, and at his deposition, co-defendant conceded that he simply did not see defendant-driver's car before attempting a left turn, and that his view of oncoming traffic was obscured.

Student note:  The unsworn police accident report was hearsay evidence, and insufficient to defeat the cross-motion.

Case:  Revels v. Schoeps, NY Slip Op 05229 (1st Dep't June 30, 2016)

Here is the decision.

Tomorrow's issue:  The homeowner's exemption from liability under the Labor Law.