FELBERBAUM v. WEINBERGER (2007)

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Douglass, J.), dated December 14, 2005, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

 The plaintiff was a passenger in a vehicle driven by the defendant Isaac Weinberger.   Weinberger lost control of his vehicle, and the vehicle flipped over and struck a guardrail.   There were no other vehicles involved in the accident.   In response to the plaintiff's demonstration of her entitlement to judgment as a matter of law on the issue of liability, the defendants failed to submit evidence sufficient to raise a triable issue of fact (see Dudley v. Ford Credit Titling Trust, 307 A.D.2d 911, 912-913, 762 N.Y.S.2d 905;  MacIntosh v. August Ambulette Serv. 271 A.D.2d 661, 706 N.Y.S.2d 187;  Siegel v. Terrusa, 222 A.D.2d 428, 635 N.Y.S.2d 52;  Cebula v. Bonime, 92 A.D.2d 856, 459 N.Y.S.2d 847).   Accordingly, the Supreme Court correctly granted the plaintiff's motion for summary judgment on the issue of liability.

 Contrary to the defendants' contention, the transcript of Weinberger's examination before trial was certified and, hence, in admissible form.   Even though the moving papers inadvertently omitted the certification page, the defendants supplied it in opposition to the plaintiff's motion for summary judgment.   There is thus no merit to the defendants' contention that the plaintiff improperly sought to establish her prima facie entitlement to summary judgment on the issue of liability on the basis of evidence first presented to the Supreme Court in reply papers (see Valure v. Century 21 Grand, 35 A.D.3d 591, 826 N.Y.S.2d 418;  Johnston v. Continental Broker-Dealer Corp., 287 A.D.2d 546, 731 N.Y.S.2d 666;  Chavez v. Bancker Constr. Corp., 272 A.D.2d 429, 708 N.Y.S.2d 325;  cf. GJF Constr. Corp. v. Cosmopolitan Decorating Co., Inc., 35 A.D.3d 535, 828 N.Y.S.2d 409).

The defendants' remaining contention is without merit.