Collado v. Jiacono

• Decision Date: 25 March 2015
• Docket Number: 2013-05980
• Citation: Collado v. Jiacono, 2015 NY Slip Op 2443, 126 A.D.3d 927, 6 N.Y.S.3d 116 (N.Y. App. Div. 2015)
• Parties: Juan COLLADO, appellant, v. John JIACONO, et al., respondents.
• Court: New York Supreme Court — Appellate Division

126 A.D.3d 927

6 N.Y.S.3d 116

2015 N.Y. Slip Op. 02443

Juan COLLADO, appellant

v.John JIACONO, et al., respondents.

2013-05980

Supreme Court, Appellate Division, Second Department, New York.

March 25, 2015.

Surdez & Perez, P.C., Astoria, N.Y. (Kevin J. Perez of counsel), for appellant.

McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (M. Grace Sacro of counsel), for respondents.

THOMAS A. DICKERSON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Martin, J.), entered April 16, 2013, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

On June 7, 2008, the plaintiff was one of five passengers in a vehicle owned and operated by his brother, as it was traveling on the Southern State Parkway, when that vehicle was allegedly struck in the rear by a vehicle displaying dealership license plates owned by the defendant Bayridge Automotive Management Group, also known as Bay Ridge Lexus (hereinafter Bayridge). The plaintiff commenced this action against Bayridge and the driver of the Bayridge vehicle. After issue was joined and discovery completed, the defendants moved for summary judgment, alleging that they had no record of their vehicle being involved in any such accident and that the plaintiff would be unable to prove that the subject accident occurred or that the defendants were involved in it. The Supreme Court granted the motion. The plaintiff appeals, and we reverse.

While the ultimate burden of proof at trial will fall upon the plaintiff, a defendant seeking summary judgment bears the initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidentiary proof in admissible form (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). The ultimate burden of proof after trial plays no part in the assessment of whether there are relevant factual issues presented on a motion for summary judgment (see generally Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 988 N.Y.S.2d 86, 11 N.E.3d 159 ). On a summary judgment motion, a moving defendant does not meet its burden of affirmatively establishing its entitlement to judgment as a matter of law by merely pointing to gaps in the plaintiff's case. It must affirmatively demonstrate the merit of its claim or defense (see Marielisa R. v. Wolman Rink Operations, LLC, 94 A.D.3d 963, 942 N.Y.S.2d 215 ; Rubistello v. Bartolini Landscaping, Inc., 87 A.D.3d 1003, 1005, 929 N.Y.S.2d 298 ; Shafi v. Motta, 73 A.D.3d 729, 730, 900 N.Y.S.2d 410 ; Pace v. International Bus. Mach. Corp., 248 A.D.2d 690, 670 N.Y.S.2d 543 ). A motion for summary judgment “ ‘should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility’ ” (Ruiz v. Griffin, 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590, quoting Scott v. Long Is. Power Auth., 294 A.D.2d 348, 348, 741 N.Y.S.2d 708 ; see Pavane v. Marte, 109 A.D.3d 970, 971 N.Y.S.2d 562 ; Benetatos v. Comerford, 78 A.D.3d 750, 911 N.Y.S.2d 155 ; Baker v. D.J. Stapleton, Inc., 43 A.D.3d 839, 841 N.Y.S.2d 382 ).

Here, the affirmation of the defendants' attorney that was submitted in support of the motion, along with brief...