Practice point: The Appellate Division reversed the motion court's granting of defendants' motion and reinstated the complaint in this action for injuries allegedly sustained when plaintiff's motorcycle came in contact with the rear of a box truck operated by defendant-driver and owned by defendant-owner. Defendants failed to establish their prima facie entitlement to judgment as a matter of law. In support of their motion, the defendants submitted, inter other things, an affidavit from defendant-driver and a number of verified witness statements which presented conflicting evidence as to how the accident occurred, including a statement that the defendants' vehicle "stop[ped] short at [a] green light [and] the motorcycle . . . had no time to stop or maneuver." On this record, defendants failed to eliminate all triable issues of fact as to whether the defendant-driver was free from fault in the happening of the accident.
Student note: A defendant moving for summary judgment in a negligence action has the
burden of establishing, prima facie, that he or she was not at fault in
the happening of the accident.
Case: Gonzalez v. Ayala, NY Slip Op 05626 (2d Dep't July 27, 2016)
Here is the decision.
Tomorrow's issue: Res judicata and permissive counterclaims.
