WALLACE v. DUBIN (2005)

Supreme Court, Appellate Division, Second Department, New York.

Eric WALLACE, appellant, v. Deborah DUBIN, et al., respondents.

Decided: July 05, 2005

HOWARD MILLER, J.P., GLORIA GOLDSTEIN, STEPHEN G. CRANE, and PETER B. SKELOS, JJ.

John T. Wisell, Kew Gardens, N.Y., for appellant. Boeggeman, George, Hodges & Corde, P.C., White Plains, N.Y. (Leslie K. Arfine and Cynthia Dolan of counsel), for respondents Deborah Dubin and Beth Dubin. Bivona & Cohen, P.C., New York, N.Y. (Michael N. Jagiani of counsel), for respondent Bank of America Auto Finance Corporation.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered June 28, 2004, which denied his motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly denied the plaintiff's motion for summary judgment on the issue of liability. The evidence failed to establish the absence of a triable issue of fact (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690). Although the submissions on the motion for summary judgment demonstrated that the defendant driver was negligent in failing to yield the right of way, the plaintiff's concession that he did not know the speed at which he was operating his motorcycle and did not recall seeing the other vehicle, together with the evidence submitted in opposition to the motion, raised questions of fact as to his freedom from negligence (see id.; Eastmond v. Wen Po Wong, 300 A.D.2d 344, 751 N.Y.S.2d 767).

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