You are here: / / DEFENDANT DID NOT DEMONSTRATE DISCOVERY WOULD LEAD TO EVIDENCE ESSENTIAL...
, ,

DEFENDANT DID NOT DEMONSTRATE DISCOVERY WOULD LEAD TO EVIDENCE ESSENTIAL TO DEFEND AGAINST PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; PLAINTIFF’S MOTION SHOULD NOT HAVE BEEN DENIED AS PREMATURE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff motorcyclist’s motion for summary judgment in this intersection traffic accident case was not premature, defendant’s violation of the Vehicle and Traffic law was negligence per se, and the comparative-negligence affirmative defense should have been dismissed. Plaintiff demonstrate defendant made an illegal left turn in front of him and he could not avoid the collision:

… [A] violation of the Vehicle and Traffic Law constitutes negligence as a matter of law … . “The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law” … . “[A] driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision” … . …

… [T]he plaintiff’s motion was not premature since the defendants failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (see CPLR 3212[f] … ). Higgins v Stelmach, 2022 NY Slip Op 05155, Second Dept 9-13-22

Practice Point: Plaintiff demonstrated defendant violated the Vehicle and Traffic Law by making a left turn in front of plaintiff’s motorcycle. Defendant did not demonstrate discovery would lead to evidence essential to defending the motion for summary judgment. The motion therefore was not premature. Plaintiff was entitled to summary judgment and dismissal of the comparative negligence affirmative defense.

 

You might also like
Language of Exclusion from Coverage, Including the Phrase “Arising Out Of” Was Not Ambiguous—Insurer Was Not Obligated to Defend or Indemnify Defendants
DEFENDANTS SCHOOL BUS COMPANY AND BOARD OF EDUCATION DID NOT HAVE NOTICE CHILDREN WHO INJURED INFANT PLAINTIFF ON THE SCHOOL BUS WERE CAPABLE OF DANGEROUS CONDUCT, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
TOWNHOUSES PURCHASED BY A NOT-FOR-PROFIT SCHOOL TO HOUSE FACULTY ARE TAX EXEMPT (SECOND DEPT),
DETECTIVE WHO CONDUCTED THE LINEUP IDENTIFICATION PROCEDURE WAS AWARE DEFENDANT WAS REPRESENTED BY COUNSEL BUT DID NOT NOTIFY COUNSEL OF THE PROCEDURE, CONVICTIONS REVERSED (SECOND DEPT).
IN THIS SLIP AND FALL CASE, THERE WAS A QUESTION OF FACT WHETHER THE OUT-OF-POSSESSION LANDLORD WAS LIABLE FOR AN ALLEGEDLY DEFECTIVE DRAINAGE SYSTEM WHICH RESULTED IN ICE ACCUMULATION. PLAINTIFF’S AFFIDAVITS SHOULD HAVE BEEN CONSIDERED (SECOND DEPT).
QUESTION OF FACT WHETHER FALL FROM BED WAS THE RESULT OF THE FAILURE TO TAKE ADEQUATE PRECAUTIONS AGAINST FALLING AND QUESTION OF FACT WHETHER THE FALL EXACERBATED THE PROGRESSION OF PLAINTIFF’S INTERCRANIAL HEMORRHAGE IN THIS MEDICAL MALPRACTICE ACTION, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
THE BANK IN THIS FORECLOSURE ACTION DID NOT PROVE COMPLIANCE WITH THE MAILING REQUIREMENTS OF RPAPL 1304 AND THEREFORE WAS NOT ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT). ​
FAMILY COURT SHOULD AMEND ITS ORDER GRANTING A SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) PETITION TO ADDRESS THE REASONS FOR THE REVOCATION OF THE PETITION BY THE US CITIZENSHIP AND IMMIGRATION SERVICES (SECOND DEPT).

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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A LATE MOTION FOR SUMMARY JUDGMENT SHOULD BE ALLOWED WHERE, AS HERE, DISCOVERY... THE FORECLOSURE ACTION WAS AUTOMATICALLY STAYED WHEN DEFENDANT’S ATTORNEY...