Practice point: The plaintiff allegedly was injured when he was struck by a vehicle owned by the
defendant-florist. The plaintiffs
established their prima facie entitlement to judgment as a matter of law
on the issue of liability by presenting proof that the injured plaintiff was walking
within an unmarked crosswalk and that he looked for approaching traffic
before he began to cross.
In opposition, the defendants failed to raise a triable issue
of fact. A transcript of an alleged telephone conversation that a
nonparty witness had with the defendants' insurer, which is not authenticated, certified, or sworn, was inadmissible and insufficient to raise a triable issue of fact. Additionally, the driver-defendant's affidavit did not raise a triable issue of fact as it consisted of unsupported speculation that the injured plaintiff was comparatively negligent.
Student note: That branch of the
plaintiffs' motion which sought summary judgment on the issue of
liability was not premature, since the florist-defendants failed to
offer an evidentiary basis to show that discovery may lead to relevant
evidence and that the facts essential to justify opposition to the
motion were exclusively within the knowledge and control of the
plaintiff.
Case: Garcia v. Lenox Hill Florist III, Inc, NY Slip Op 06171 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Issues of fact as to constructive notice.
