Practice point: The Appellate Division reversed, and denied the motion to dismiss. In support of their motion, defendants submitted, among other things, transcripts of the deposition testimony of both plaintiff and defendant-driver. In those transcripts, the parties gave differing accounts of how the accident occurred, and there were issues of fact and credibility that could not be resolved on the motion. Given these issues, defendants failed to establish their prima facie entitlement to judgment as a matter of law.
Student note: Since defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the motion is denied without consideration of the sufficiency of plaintiff's opposition papers.
Case: Chimbo v. Bolivar, NY Slip Op 05969 (2d Dep't September 14, 2016)
Here is the decision.
Tomorrow's issue: A defendant files for summary judgment before plaintiff commences discovery.