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

Estate of Linda A. BACHMAN, BY Cynthia CHARLES, as Executrix, Plaintiff–Appellant, v. Edna HONG, Defendant–Respondent.


Decided: February 07, 2019

Sweeny, J.P., Tom, Webber, Kahn, Kern, JJ. Bernstein & Bernstein, White Plains (Walter L. Rich of counsel), for appellant. Cartiglia, Connolly & Russo, Garden City (Joseph T. Belevich of counsel), for respondent.

In this action arising from a motor vehicle accident, plaintiff established prima facie entitlement to partial summary judgment against defendant on the issue of liability, by submitting her affidavit averring that, at the time of the accident, she was a passenger in a car driven by defendant, and that defendant caused the accident by failing to stop at a steady red light at an intersection and hitting a second vehicle (see Uribe v. Pronto Gas Heating Supplies, Inc., 129 A.D.3d 509, 509, 10 N.Y.S.3d 244 [1st Dept. 2015];  Pace v. Robinson, 88 A.D.3d 530, 531, 930 N.Y.S.2d 581 [1st Dept. 2011].  In opposition, defendant did not submit any affidavit or other evidence concerning how the accident occurred that would raise an issue of fact.  Her speculation that the other driver could also have been at fault is insufficient to deny plaintiff's motion for summary judgment against defendant, given the uncontested showing of negligence (see Martinez v. Cofer, 128 A.D.3d 421, 422, 8 N.Y.S.3d 212 [1st Dept. 2015] ).  Although discovery had not yet been taken, the motion was not premature as to liability because defendant, as the driver, has knowledge of how the accident occurred and did not show any need for discovery on that issue (see Delgado v. Martinez Family Auto, 113 A.D.3d 426, 427, 979 N.Y.S.2d 277 [1st Dept. 2014];  Johnson v. Phillips, 261 A.D.2d 269, 270, 272, 690 N.Y.S.2d 545 [1st Dept. 1999];  CPLR 3212[f] ).

On the other hand, plaintiff failed to meet her prima facie evidence on the serious injury issue because she neglected to submit admissible evidence supporting her allegation that she suffered a fractured finger and sternum (CPLR 3212[a];  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).  Although plaintiff's hospital records were submitted on reply, that did not provide defendant with any opportunity to submit medical evidence in opposition or to address whether the records supported the injuries alleged in the complaint.  Further, the motion was premature because defendant had not received those documents or conducted any discovery on the serious injury issue before the motion was made (see Cruz v. Skeritt, 140 A.D.3d 554, 555, 32 N.Y.S.3d 504 [1st Dept. 2016];  Global Mins. & Metals Corp. v. Holme, 35 A.D.3d 93, 103, 824 N.Y.S.2d 210 [1st Dept. 2006], lv denied 8 N.Y.3d 804, 831 N.Y.S.2d 106, 863 N.E.2d 111 [2007] ).