LACAGNINO v. Eduard Pukhkiy, appellant. (2003)

In an action to recover damages for personal injuries, the defendant Eduard Pukhkiy appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated June 18, 2002, which denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the order is affirmed, with one bill of costs.

 The Supreme Court properly denied the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, as he did not tender “sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The deposition testimony of the defendant Pedro Gonzalez, upon which the appellant relied, was contradictory and supportive of conflicting inferences regarding the manner in which the accident happened and the culpability of the respective defendants.   Gonzalez's testimony also raised questions of credibility (see Williams v. O & Y Concord 60 Broad St. Co., 304 A.D.2d 570, 757 N.Y.S.2d 335;  St. Luke's Roosevelt Hosp. v. Allstate Ins. Co., 303 A.D.2d 743, 757 N.Y.S.2d 457).   Summary judgment should not be granted “where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Scott v. Long Is. Power Auth., 294 A.D.2d 348, 741 N.Y.S.2d 708).

 The appellant correctly contends that the MV-104 accident report submitted by the plaintiff in opposition to the motion for summary judgment constitutes hearsay and was “insufficient as a matter of law to raise triable factual issues” (Johnson v. Phillips, 261 A.D.2d 269, 270, 690 N.Y.S.2d 545;  see Hegy v. Coller, 262 A.D.2d 606, 692 N.Y.S.2d 463;  Rue v. Stokes, 191 A.D.2d 245, 594 N.Y.S.2d 749).   However, this issue is academic since the appellant's failure to make a showing of entitlement to judgment as a matter of law warranted the denial of the summary judgment motion regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect Hosp., supra).