ARBIZU v. REM TRANSPORTATION INC (2005)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated February 2, 2005, as denied his motion for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.

The plaintiff established his prima facie entitlement to summary judgment on the issue of liability by submitting an affidavit in which he stated that the defendants' vehicle failed to yield at a stop sign and collided with his vehicle, which was proceeding through the intersection.   This evidence was sufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability (see Vehicle and Traffic Law § 1142 [a];  Nolan v. Mizrahi, 12 A.D.3d 430, 783 N.Y.S.2d 849;  Morgan v. Hachmann, 9 A.D.3d 400, 780 N.Y.S.2d 33;  Spatola v. Gelco Corp., 5 A.D.3d 469, 773 N.Y.S.2d 101;  Yusupov v. Lugo, 305 A.D.2d 496, 758 N.Y.S.2d 822;  Gillinder v. Hemmes, 298 A.D.2d 493, 748 N.Y.S.2d 786).   The defendants failed to submit an affidavit from a person with personal knowledge of the facts either denying the plaintiff's allegations or offering a non-negligent explanation for the collision (see Wilke v. Price, 221 A.D.2d 846, 633 N.Y.S.2d 686;  Salenius v. Lisbon, 217 A.D.2d 692, 630 N.Y.S.2d 531).   Furthermore, the defendants' mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process was also insufficient to defeat the motion (see Neryaev v. Solon, 6 A.D.3d 510, 775 N.Y.S.2d 348;  Spatola v. Gelco Corp., supra;  Frouws v. Campbell Foundry Co., 275 A.D.2d 761, 714 N.Y.S.2d 227).   Accordingly, the Supreme Court erred in denying the plaintiff's motion for summary judgment on the issue of liability.