You are here: / / DEFENDANT DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER OF...
,

DEFENDANT DRIVER RAISED A QUESTION OF FACT ABOUT WHETHER THE DRIVER OF THE CAR IN WHICH PLAINTIFF WAS A PASSENGER WAS NEGLIGENT; THE FACT THAT THE DEFENDANT’S OUT-OF-STATE AFFIDAVIT DID NOT HAVE A CERTIFICATE OF CONFORMITY DID NOT AFFECT ITS VALIDITY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the motion for summary judgment by Ellis, the driver of the car in which plaintiff was a passenger, should have been denied. And the cross motion for summary judgment by plaintiff should have been denied. The defendant driver’s description of the accident raised a question of fact whether Ellis was negligent. The fact that the defendant driver submitted an out-of-state affidavit without a certificate of conformity was not a fatal defect:

… [T]he … defendants raised a triable issue of fact through the affidavit of John Koranteng, the alleged operator of the … defendants’ vehicle. Koranteng averred that he checked to make sure that the left side of his vehicle was clear before he began to initiate a right turn onto Brooklyn Avenue. Koranteng claimed that, while he was turning right, the collision occurred when Ellis’s vehicle attempted to aggressively pass him on his driver’s side … . Ellis’s contention that Koranteng’s affidavit was not in admissible form and, therefore, should not have been considered, is without merit, since the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect … .

… [T]he Supreme Court should have denied the plaintiff’s cross motion for summary judgment on the issue of liability insofar as asserted against the … defendants. … [T]he … defendants raised a triable issue of fact through the submission of … Koranteng’s affidavit … . ” … [I]f triable issues of fact are raised by the defendants . . . summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger” … . Wise v Boyd Bros. Transp., Inc., 2021 NY Slip Op 03345, Second Dept 5-26-21

 

You might also like
Criteria for Contractual Indemnification Explained
ALTHOUGH THERE WAS A STORM IN PROGRESS WHEN PLAINTIFF FELL, PLAINTIFFS RAISED A QUESTION OF FACT WHETHER PREEXISTING SNOW AND ICE WAS THE CAUSE OF THE FALL.
EVIDENCE DID NOT SUPPORT CONSECUTIVE SENTENCES FOR CRIMINAL POSSESSION OF A WEAPON AND MURDER (SECOND DEPT).
ALTHOUGH THE HIRING PARTY IS GENERALLY NOT RESPONSIBLE FOR THE NEGLIGENCE OF AN INDEPENDENT CONTRACTOR, THERE IS A NONDELEGABLE-DUTY EXCEPTION TO THAT RULE; THE OWNER OF A BAR OPEN TO THE PUBLIC HAS A NONDELEGABLE DUTY TO MAINTAIN SAFE INGRESS AND EGRESS; HERE THE INDEPENDENT CONTRACTOR WAS REPAIRING THE BUILDING FACADE WHEN A CONCRETE BUCKET FELL ON THE PLAINTIFF (SECOND DEPT).
IN THE CONTEXT OF AN APPLICATION FOR A PRELIMINARY INJUNCTION SUPREME COURT SHOULD NOT HAVE GRANTED THE ULTIMATE RELIEF SOUGHT; THE CRITERIA FOR A PRELIMINARY INJUNCTION WERE NOT MET (SECOND DEPT).
Collapse of Rotten Floor First Revealed When Carpet Was Removed Was Not Foreseeable—Labor Law 240(1) Cause of Action Properly Dismissed—Defect Was Latent and Was Not Caused by Owner—Labor Law 200 and Common-Law Negligence Causes of Action Properly Dismissed
DEFENSE COUNSEL DID NOT INVESTIGATE ALIBI EVIDENCE, DID NOT OBJECT TO EVIDENCE WHICH HAD BEEN RULED OFF LIMITS, AND DID NOT IMPEACH THE COMPLAINANT WITH INCONSISTENT TESTIMONY, CONVICTION REVERSED (SECOND DEPT).
SIDEWALK RISE OF A LITTLE OVER AN INCH WAS A NON-ACTIONABLE TRIVIAL DEFECT.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND... ONCE THE APPELLATE DIVISION DECIDED THE NYC DEPARTMENT OF BUILDINGS ACTED RATIONALLY...