GOMEZ v. CITY OF NEW YORK (2020)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated September 28, 2018.  The order granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiffs' cross motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

On February 8, 2015, the plaintiff Wiston Cruz Gomez (hereinafter the injured plaintiff) allegedly was struck by a vehicle as he was crossing a street within a crosswalk in Brooklyn.  He subsequently submitted to the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC) a sworn notice of intention to make a claim dated February 19, 2015, averring that the vehicle that struck him left the scene, and that he was not able to ascertain the identity of its owner or operator.  Thereafter, following the service of a notice of claim 18 days after submitting his MVAIC notice, the injured plaintiff, and his wife suing derivatively, commenced this action against the defendant, City of New York, on August 5, 2015, alleging that the injured plaintiff had been struck by a New York City Sanitation Department snowplow vehicle.  During discovery, it was revealed that the injured plaintiff had received $50,000 in benefits from the MVAIC based on the hit-and-run claim that he had previously submitted.  The Supreme Court granted the City's subsequent motion for summary judgment dismissing the complaint and denied the plaintiffs' cross motion for summary judgment on the issue of liability.  The plaintiffs appeal.

“While the ultimate burden of proof at trial will fall upon the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form” (Collado v. Jiacono, 126 A.D.3d 927, 928, 6 N.Y.S.3d 116;  see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Fobbs v. Shore, 171 A.D.3d 874, 875, 95 N.Y.S.3d 883).  Here, the City submitted evidence sufficient to establish, prima facie, that its vehicle did not strike the injured plaintiff (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Fobbs v. Shore, 171 A.D.3d 874, 95 N.Y.S.3d 883;  Mora v. Kane is Able, Inc., 105 A.D.3d 1022, 963 N.Y.S.2d 375).  In opposition, the plaintiffs, who did not provide any explanation for the previous admission to the MVAIC and the police officers investigating the accident that the injured plaintiff was unable to describe the vehicle that struck him or to ascertain the identity of the owner or operator of that vehicle, failed to raise a triable issue of fact, offering mere speculation that a City vehicle was involved in the accident.

With respect to their cross motion, the plaintiffs failed to present evidence that a City vehicle struck the injured plaintiff, and thus failed to establish their prima facie entitlement to judgment as a matter of law on the issue of liability (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, we agree with the Supreme Court's determination granting the City's motion for summary judgment dismissing the complaint and denying the plaintiffs' cross motion for summary judgment on the issue of liability.

SCHEINKMAN, P.J., MASTRO, BALKIN and HINDS–RADIX, JJ., concur.