Monday, September 29, 2014

Summary judgment as to liability in an action involving a pedestrian struck by an automobile.

Practice point:  The plaintiff allegedly was injured when he was struck by a vehicle owned by the defendant-florist. The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by presenting proof that the injured plaintiff was walking within an unmarked crosswalk and that he looked for approaching traffic before he began to cross.

In opposition, the defendants failed to raise a triable issue of fact. A transcript of an alleged telephone conversation that a nonparty witness had with the defendants' insurer, which is not authenticated, certified, or sworn, was inadmissible and insufficient to raise a triable issue of fact. Additionally, the driver-defendant's affidavit did not raise a triable issue of fact as it consisted of unsupported speculation that the injured plaintiff was comparatively negligent.

Student note:  That branch of the plaintiffs' motion which sought summary judgment on the issue of liability was not premature, since the florist-defendants failed to offer an evidentiary basis to show that discovery may lead to relevant evidence and that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff.

Case:  Garcia v. Lenox Hill Florist III, Inc, NY Slip Op 06171 (2d Dept. 2014)

Here is the decision.

Tomorrow's issue: Issues of fact as to constructive notice.