The First Department found defendant's summary judgment motion timely, in view of a prior court order, which had been issued by another justice of coordinate jurisdiction, extending the time to make the motion, in Fernandez v. Laret, which was decided on August 23, 2007.

On the merits, the court dismissed the negligence claim based on defendant's unrebutted testimony that his car was stopped when it was struck. In addition, the court said that plaintiff's deposition, replete with internal contradictions, was clearly coached and tailored, creating only a feigned issue of fact as to whether defendant's car was moving at the time of the accident.