Gonzalez v. 98 Mag Leasing

• Court: New York Court of Appeals
• Writing for the Court: <P>SMITH, J.</P&gt
• Citation: 711 N.Y.S.2d 131,733 N.E.2d 203,95 N.Y.2d 124
• Decision Date: 15 June 2000
• Parties: INOCENTE GONZALEZ, as Guardian ad Litem for CIRINO GONZALEZ, Appellant,<BR>v.<BR>98 MAG LEASING CORP. et al., Respondents and Third-Party Plaintiffs, et al., Third-Party Defendants.

95 N.Y.2d 124
733 N.E.2d 203
711 N.Y.S.2d 131

INOCENTE GONZALEZ, as Guardian ad Litem for CIRINO GONZALEZ, Appellant,
v.
98 MAG LEASING CORP. et al., Respondents and Third-Party Plaintiffs, et al., Third-Party Defendants.

SMITH, J.

Argued May 10, 2000.Decided June 15, 2000.

[95 N.Y.2d 125]

Seligson, Rothman & Rothman, New York City (Alyne I. Diamond, Martin S. Rothman and Samuel J. Lurie of counsel), for appellant.

Quirk and Bakalor, P. C., New York City (H. Nicholas Goodman, James M. Andriola and Hoong N. Young of counsel), for respondents.

Chief Judge KAYE and Judges BELLACOSA, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

[95 N.Y.2d 126]

OPINION OF THE COURT

SMITH, J.

In this personal injury action, the issues presented are whether the trial court abused its discretion by entertaining defendants' cross motion for summary judgment more than 120 days after the filing of the note of issue (see, CPLR 3212 [a]) and whether summary judgment was properly granted as a matter of law. We answer that there was no abuse of discretion and that defendants were entitled to summary judgment.

While delivering food in Brooklyn, plaintiff Cirino Gonzalez, an employee of third-party defendant Golden Nut, Inc., was struck by a truck owned by defendant 98 Mag Leasing and driven by defendant Kenneth W. Hateau, an employee of defendant Center Island Banana. As a result, plaintiff suffered extensive injuries.

Plaintiff commenced this personal injury action against 98 Mag Leasing, Center Island Banana and Kenneth Hateau, alleging that their negligence in operating and maintaining the truck was the proximate cause of his injuries. After issue was joined, defendants commenced a third-party action for contribution and/or indemnification both against the New York City Transit Authority (NYCTA), alleging that it had negligently parked its buses near the intersection of Tillary and Jay Streets, where the accident occurred, and against Golden Nut for failing to properly supervise and train its employee.

During discovery, plaintiff and defendant Hateau were deposed, as were two witnesses from the accident scene identified

[95 N.Y.2d 127]

in the police report. Plaintiff has no memory of the accident. Hateau testified that he was driving within the speed limit with an unobstructed view of the road. While concentrating on the approaching intersection, he saw a red blur in his passenger side mirror, heard a thump and then applied his brakes. When he got out of his truck, Hateau realized that he had struck plaintiff, who was lying unconscious in the roadway. Michael Nicosia testified on March 1, 1996 that he heard tires screeching and then a loud thump one or two seconds later. Nicosia stated that only when he heard the thump did he look up and see plaintiff lying in the middle lane of the roadway.

On December 13, 1996, plaintiff filed a note of issue. Defendants timely moved to vacate the note of issue "due to outstanding discovery." Defendants argued that a court order, dated September 6, 1996, directed the NYCTA to produce for deposition both the bus driver, who may have witnessed the accident, and Ruth Moore, an eyewitness identified in the police report. The...