Practice point: The Appellate Division reversed the motion court and denied the motion for summary judgment as to defendant's liability in the underlying motor vehicle accident. As plaintiff, in support of the motion, submitted and relied on the certified police accident
report containing the eyewitness's statement, he cannot now complain
that defendants' reliance on favorable aspects of the statement to
defeat summary judgment is improper.
Student note: Any inconsistencies between the
statements made to the police after the accident and the affidavits
submitted in support of plaintiff's motion raise issues of fact as to
whether defendant driver violated Vehicle and Traffic Law § 1141, and
whether plaintiff's excessive speed or other negligence contributed to
the accident, thereby precluding an award of summary judgment.
Case: Espinal v. Volunteers of America-Greater N.Y., Inc., NY Slip Op 07260 (1st Dept. 2014)
Here is the decision.
Tomorrow's issue: Submissions outside the pleadings on a 3211(a)(7) motion.
