LOPEZ v. WS DISTRIBUTION INC

Reset A A Font size: Print

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

Jose LOPEZ, respondent, v. WS DISTRIBUTION, INC., appellant.

Decided: November 28, 2006

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, WILLIAM F. MASTRO, and JOSEPH COVELLO, JJ. Goldman & Grossman, New York, N.Y. (Jay S. Grossman and Eleanor R. Goldman of counsel), for appellant. Arnold I. Bernstein, White Plains, N.Y. (Susan R. Nudelman of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated May 5, 2006, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

 The plaintiff established his prima facie entitlement to summary judgment on the issue of liability through his affidavit wherein he set forth that he was struck by the defendant's forklift as it was being operated in reverse, thereby shifting the burden to the defendant to produce sufficient evidentiary proof in admissible form to show the existence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In response, the defendant failed to present admissible evidence sufficient to raise triable material issue of fact sufficient to defeat the motion (see Zuckerman v. City of New York, supra ).   The unsupported assertion by the defendant's employee, who was operating the forklift, that the plaintiff walked behind the forklift causing the accident was insufficient to raise an issue of fact regarding the plaintiff's comparative negligence where the defendant's employee never stated where he was looking prior to the accident or whether he saw the plaintiff prior to the accident and if he did, why he could not avoid striking him.

 Moreover, contrary to the defendant's contention, the motion was not premature, as it failed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence (see Ruttura & Sons Const. Co. v. Petrocelli Constr., 257 A.D.2d 614, 615, 684 N.Y.S.2d 286) and that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (see Juseinoski v. New York Hosp. Med. Ctr. Of Queens, 29 A.D.3d 636, 815 N.Y.S.2d 183;  Baron v. Incorporated Vil. of Freeport, 143 A.D.2d 792, 533 N.Y.S.2d 143).   The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion (see Arbizu v. REM Transp., 20 A.D.3d 375, 799 N.Y.S.2d 231;  Kershis v. City of New York, 303 A.D.2d 643, 756 N.Y.S.2d 786;  Associates Commercial Corp. v. Nationwide Mut. Ins. Co., 298 A.D.2d 537, 748 N.Y.S.2d 792;  Drug Guild Distribs. v. 3-9 Drugs, 277 A.D.2d 197, 715 N.Y.S.2d 442;  Weltmann v. RWP Group, 232 A.D.2d 550, 648 N.Y.S.2d 970;  Mazzaferro v. Barterama Corp., 218 A.D.2d 643, 630 N.Y.S.2d 346).   Accordingly, the Supreme Court correctly granted the plaintiff's motion.

Copied to clipboard