BENEDIKT v. CERTIFIED LUMBER CORPORATION (2009)

In an action to recover damages for personal injuries, etc., the defendants Certified Lumber Corporation, Certified Lumber, LLC, and Israel Nieman appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated July 9, 2008, which granted the plaintiffs' motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiffs established a prima facie case for summary judgment in their favor on the issue of liability by demonstrating that the defendant driver failed to yield the right of way to the injured plaintiff, Adina Benedikt, who was crossing the street within the crosswalk with the pedestrian “WALK” signal in her favor (see Zabusky v. Cochran, 234 A.D.2d 542, 651 N.Y.S.2d 190;  Jermin v. APA Truck Leasing Co., 237 A.D.2d 255, 655 N.Y.S.2d 406).   The plaintiffs submitted an affidavit by the injured plaintiff to that effect, which was supported by copies of the police accident reports and the MV-104 report signed by the defendant driver, containing that defendant's admission against interest that he did not see the injured plaintiff before he struck her (see Niyazov v. Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582;  Vaden v. Rose, 4 A.D.3d 468, 771 N.Y.S.2d 670;  Kemenyash v. McGoey, 306 A.D.2d 516, 762 N.Y.S.2d 629;  Guevara v. Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465).   The affidavit of the defendant driver, submitted in opposition to the motion, merely raised feigned issues of fact, which are insufficient to defeat a motion for summary judgment (see Capraro v. Staten Is. Univ. Hosp., 245 A.D.2d 256, 664 N.Y.S.2d 826;  Miller v. City of New York, 214 A.D.2d 657, 625 N.Y.S.2d 271;  Garvin v. Rosenberg, 204 A.D.2d 388, 614 N.Y.S.2d 190), and the defendants failed to demonstrate that further discovery was warranted (see Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516).