SKLARZ v. The City of New York, Defendant-Respondent. (2006)

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered April 13, 2006, which granted plaintiff's motion for summary judgment as to liability as against the Crabtree defendants, and granted the motion of defendant City of New York insofar as it sought summary judgment dismissing the complaint against it, unanimously modified, on the law, plaintiff's motion for summary judgment as against the Crabtree defendants denied, and otherwise affirmed, without costs.   Order, same court and Justice, entered October 26, 2005, which, inter alia, granted plaintiff's motion to quash nonparty subpoenas and for a protective order, unanimously affirmed, without costs.

Plaintiff's decedent was killed in an automobile accident while riding in a vehicle operated by his wife, defendant Sara Crabtree.   The contradictory statements of Mrs. Crabtree, the sole surviving witness to the accident, respecting the accident's attendant circumstances and cause do no more than raise triable issues not amenable to resolution on a summary judgment motion (see Carlos v. Rochester Gen. Hosp., 163 A.D.2d 894, 558 N.Y.S.2d 417 [1990] ).   Accordingly, plaintiff's motion for summary judgment as to liability as against the Crabtree defendants should have been denied.   On the other hand, the City's motion for summary judgment was properly granted.   Although plaintiff contends that faulty lighting or signage contributed to the accident, there was no evidence to that effect (see Cappolla v. City of New York, 302 A.D.2d 547, 549-550, 755 N.Y.S.2d 100, lv. denied 100 N.Y.2d 511, 766 N.Y.S.2d 165, 798 N.E.2d 349 [2003];  Michetti v. City of New York, 184 A.D.2d 263, 585 N.Y.S.2d 201 [1992] ).

Post-note of issue discovery was properly denied defendant Crabtree Motors in light of the absence of unusual or unanticipated circumstances warranting such relief (see 22 NYCRR § 202.21[d];  Bojkovic v. JLT Assocs., Inc., 278 A.D.2d 46, 717 N.Y.S.2d 171 [2000];  Karr v. Brant Lake Camp, Inc., 265 A.D.2d 184, 696 N.Y.S.2d 140 [1999] ).