FERNANDEZ v. LARET

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

Anell P. FERNANDEZ, Plaintiff-Respondent, v. Linda LARET, et al., Defendants-Appellants.

Decided: August 23, 2007

ANDRIAS, J.P., SAXE, WILLIAMS, GONZALEZ, KAVANAGH, JJ. Law Offices of Steven I. Lubowitz, Scarsdale (Susan I. Lubowitz of counsel), for Linda and Herman A. Laret appellants. Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck (Elizabeth M. Hecht of counsel), for Julio C. Vasquez and Enita A. Calderon appellants.

Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered October 12, 2006, which denied defendants' motion and cross motion for summary judgment, unanimously reversed, on the law, without costs, the motion and cross motion granted and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

The motion court improperly denied the Laret defendants' motion for summary judgment as untimely, in view of the prior court order issued by another justice of coordinate jurisdiction extending their time to move for such relief (see Dondi v. Jones, 40 N.Y.2d 8, 386 N.Y.S.2d 4, 351 N.E.2d 650 [1976] ).   On the merits, the Laret defendants established their entitlement to summary judgment both as to the claim of negligence and as to whether plaintiff suffered a serious injury.   Mr. Laret's testimony that his car was stopped when struck was unrebutted by any proper evidence;  plaintiff's deposition, replete with internal contradictions, was clearly coached and tailored, creating only a feigned issue of fact as to whether the Laret car was moving when the Calderon car collided with it, and was insufficient to defeat summary judgment.   Furthermore, the Laret motion and the cross motion by defendants Vasquez and Calderon should have been granted based upon plaintiff's failure to demonstrate serious injury (Insurance Law § 5102[d] ) as a result of the accident.