Broer v. Smith

• Decision Date: 16 June 1997
• Citation: Broer v. Smith, 240 A.D.2d 528, 658 N.Y.S.2d 447 (N.Y. App. Div. 1997)
• Parties: Scott BROER, et al., Respondents, v. Roger SMITH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 447

658 N.Y.S.2d 447

240 A.D.2d 528

Scott BROER, et al., Respondents, v.Roger SMITH, Appellant.

Supreme Court, Appellate Division Second Department.

June 16, 1997.

James J. Thornton, Lake Success, (Sweetbaum & Sweetbaum[Marshall D. Sweetbaum] of counsel), for appellant.

Robert A. Carpentier, P.C., Mineola, for respondents.

Before BRACKEN, J.P., and ROSENBLATT, RITTER and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County(Kutner, J.), dated September 27, 1996, which granted the plaintiffs' motion for partial summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

Contrary to the defendant's present contention, the Supreme Court did not err in granting the plaintiffs' motion for partial summary judgment.The minutes of the defendant's plea of guilty in a criminal prosecution arising from the same incident as this civil lawsuit, as amplified and explained by the defendant's subsequent deposition testimony, precluded the defendant from contesting civil liability for recklessly and negligently knocking down the injured plaintiff(see, Grayes v. DiStasio, 166 A.D.2d 261, 560 N.Y.S.2d 636;Bergen v. Shapiro, 129 A.D.2d 669, 514 N.Y.S.2d 429).The defendant came forward with no evidence to support his conclusory claim that the injured plaintiff was partially responsible for his own injuries (cf., Jordan v. Britton, 128 A.D.2d 315, 515 N.Y.S.2d 678).

Furthermore, the plaintiffs' application did not violate the general proscription against making successive motions for summary judgment in the same action(see generally, Taylor v. Brooklyn Hosp., 187 A.D.2d 714, 590 N.Y.S.2d 304;LaFreniere v. Capital Dist. Transp. Auth., 105 A.D.2d...