Escobar v. Velez

• Decision Date: 09 April 2014
• Citation: 116 A.D.3d 735,983 N.Y.S.2d 612,2014 N.Y. Slip Op. 02409
• Parties: Armando ESCOBAR, respondent, v. Julian VELEZ, et al., appellants.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 735

983 N.Y.S.2d 612

2014 N.Y. Slip Op. 02409

Armando ESCOBAR, respondent,

v.Julian VELEZ, et al., appellants.

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

April 9, 2014.

Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], of counsel), for appellants.

Stefanidis & Mironis, LLP (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for respondent.

PETER B. SKELOS, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (McDonald, J.), entered April 30, 2013, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.

The plaintiff allegedly was injured while riding a motorized bicycle in Astoria, Queens, when the bicycle came into contact with a truck owned by the defendant USA Trucking, Inc., and operated by the defendant Julian Velez. The plaintiff alleges that both vehicles were waiting at a red traffic light prior to the collision, with the truck to the left of the bicycle. Velez testified at his deposition that it was raining and that he was stopped at the red light for approximately one minute waiting for it to turn to green, and had employed his right-turn signal before he had reached the intersection. The plaintiff testified at his deposition that he had been stopped for only approximately 30–40 seconds at the same traffic light. When the light turned to green, the plaintiff proceeded straight ahead through the intersection while Velez attempted to make a right turn, colliding with the plaintiff. The plaintiff commenced this action against the defendants to recover damages for personal injuries. The plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the plaintiff's motion.

In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party ( see Bravo v. Vargas, 113 A.D.3d 579, 978 N.Y.S.2d 307;Green v. Quincy Amusements, Inc., 108 A.D.3d 591, 592, 969 N.Y.S.2d 489;Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176). “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist” ( Kolivas v. Kirchoff, 14 A.D.3d 493, 493, 787 N.Y.S.2d 392;see Guadalupe v. New York City...