MOCCIA v. CARRIER CAR RENTAL INC

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

Richard MOCCIA, Plaintiff-Respondent, v. CARRIER CAR RENTAL, INC., et al., Defendants-Appellants.

Decided: May 29, 2007

FRIEDMAN, J.P., SULLIVAN, SWEENY, CATTERSON, McGUIRE, JJ. Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), for appellants. Pazer & Epstein, New York (Matthew J. Fein of counsel), for respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 24, 2007, which, in an action for personal injuries sustained when plaintiff was struck by defendants' vehicle, granted plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied.

 The affidavit submitted by defendants of a nonparty witness to the accident giving rise to this action raises a triable issue of fact as to plaintiff's comparative negligence.   Plaintiff, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c) and challenging the authority of the notary (cf. Sparaco v. Sparaco, 309 A.D.2d 1029, 765 N.Y.S.2d 683 [2003] ).   Such a defect in the form of the affidavit can be corrected nunc pro tunc (Nandy v. Albany Med. Ctr. Hosp., 155 A.D.2d 833, 548 N.Y.S.2d 98 [1989];  Raynor v. Raynor, 279 App.Div. 671, 108 N.Y.S.2d 20 [1951];  Siegel, New York Practice § 388 [4th ed.];   Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, C2309:3;  see Sparaco, supra ).   Defendants' attorney has submitted the original of the out-of-state, nonparty witness affidavit submitted in opposition to the motion bearing a notary seal, together with the appropriate certification, and complying with the oath formalities of CPLR 2309 (c) (cf. B.B.Y. Diamonds Corp. v. Five Star Designs, 6 A.D.3d 263, 775 N.Y.S.2d 34 [2004] ).