Flores v. Bueno

• Decision Date: 27 January 1998
• Citation: 246 A.D.2d 466,668 N.Y.S.2d 383
• Parties: , 1998 N.Y. Slip Op. 470 Rafael FLORES, et al., Plaintiffs-Appellants, v. Franklin M. BUENO, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 383

668 N.Y.S.2d 383

246 A.D.2d 466, 1998 N.Y. Slip Op. 470

Rafael FLORES, et al., Plaintiffs-Appellants, v. Franklin M. BUENO, Defendant-Respondent [And Another Action]

Supreme Court, Appellate Division,

First Department.

Jan. 27, 1998.

John Marshall, for Plaintiffs-Appellants.

Before ROSENBERGER, J.P., and WALLACH, RUBIN, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered June 12, 1997, which denied plaintiffs' motion for summary judgment as to liability against defendant Franklin M. Bueno, unanimously reversed, on the law, without costs, the motion granted, and the matter remanded to Supreme Court for a hearing on the issue of damages. Order, same court and Justice, entered June 17, 1997, which denied plaintiffs' motion and cross motion to strike defendant Bueno's answer, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiffs sustained injury when the automobile in which they were passengers was struck from behind by an automobile owned and operated by defendant Franklin M. Bueno while traveling on the Long Island Expressway Service Road at the Searington Road, North Hills intersection. Following service of defendant's answer and counterclaim against Rafael Flores, the driver of plaintiffs' vehicle, plaintiffs moved for summary judgment on the issue of liability against defendant. Included in the moving papers are their affidavits, an affirmation from their treating physician, the emergency room records, other medical records, an affirmation from their attorney, the police report, photographs, the complaint, answer and an October 29, 1996 preliminary conference order directing defendant Bueno to appear for deposition on December 5, 1996. Defendant did not respond to the motion. In the first order from which plaintiffs appeal, the motion was "granted only to the extent of directing that Franklin M. Bueno be precluded from testifying at trial unless he is produced for deposition at least 60 days before trial."

Plaintiffs then moved to strike defendant's answer, and plaintiff Rafael Flores cross moved to strike the fourth and fifth affirmative defenses. In opposition, defense counsel submitted an affirmation in which he stated that his office had been making an ongoing attempt to locate defendant and had ascertained that he had moved to Florida. However, letters sent to defendant's Florida address were returned, stating that he had moved. In the second order from which plaintiffs appeal, the court again...