Victor Pantojas, Plaintiff–Appellant, v. Mamadou Niang, Defendant–Respondent.

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

Victor Pantojas, Plaintiff–Appellant, v. Mamadou Niang, Defendant–Respondent.

1357 8

Decided: November 20, 2014

Renwick, J.P., Saxe, Moskowitz, DeGrasse, Richter, JJ. Michelle S. Russo, P.C., Port Washington (Michelle S. Russo of counsel), for appellant. Russo, Apoznanski & Tambasco, Melville (Gerard Ferrara of counsel), for respondent.

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Order, Supreme Court, Bronx County (Faviola A. Soto, J.), entered September 16, 2013, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

The motion for summary judgment should have been denied, as defendant made the motion more than 120 days after the note of issue was filed, and he failed to show good cause for doing so (CPLR 3212[a];  Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004];  Brill v. City of New York, 2 NY3d 648, 652 [2004] ).   In any event, defendant failed to establish prima facie that he was not the owner of the vehicle that struck plaintiff's car, as the DMV Abstract of Registration shows that he had been issued license plates with the number that plaintiff alleged was on the plates on the vehicle that struck him, and the abstract shows that defendant did not surrender those plates until after the accident (see Phoenix Ins. Co. v. Guthiel, 2 N.Y.2d 584, 587–588 [1957];  Morgan v. Termine, 2 Misc.2d 109 [Sup Ct, Kings County 1956] ).   Nor did the Declaration Sheet for Insurance Coverage establish as a matter of law that defendant did not own the vehicle that struck plaintiff's car.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK