Maragos v. Sakurai

• Decision Date: 28 February 2012
• Citation: 92 A.D.3d 922,2012 N.Y. Slip Op. 01592,938 N.Y.S.2d 908
• Parties: Michael MARAGOS, plaintiff, v. Tetsuya SAKURAI, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01592

92 A.D.3d 922

938 N.Y.S.2d 908

Michael MARAGOS, plaintiff,

v.Tetsuya SAKURAI, appellant, et al., defendant.

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

Feb. 28, 2012.

OPINION TEXT STARTS HERERichard T. Lau, Jericho, N.Y. (Joseph G. Gallo of counsel), for appellant.

In an action to recover damages for personal injuries, the defendantTetsuya Sakurai appeals from so much of an order of the Supreme Court, Queens County(Taylor, J.), dated August 2, 2011, as denied his unopposed motion for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion of the defendantTetsuya Sakurai for summary judgment dismissing the second amended complaint and all cross claims insofar as asserted against him is granted.

CPLR 3212(b) requires that a motion for summary judgment must be supported by, among other things, an affidavit “by a person having knowledge of the facts.”Notwithstanding this requirement, however, where a moving party supports a summary judgment motion with an attorney's affirmation, deposition testimony, and other proof, the failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to the motion ( seeAlvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572;Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229;Carniol v. Carniol, 288 A.D.2d 421, 422, 733 N.Y.S.2d 485;Finnegan v. Staten Is. R.T. Operating Auth., 251 A.D.2d 539, 540, 674 N.Y.S.2d 734;see alsoFowler v. New York City Tr. Auth., 245 A.D.2d 416, 416, 666 N.Y.S.2d 459;Standard Fruit & S.S. Co., Div. of Castle & Cooke v. Russo, 67 A.D.2d 970, 970, 413 N.Y.S.2d 455).Here, the motion of the defendantTetsuya Sakurai(hereinafter the appellant) was supported by, among other things, an attorney's affirmation, all of the pleadings, and the transcripts of the deposition testimony of the three parties to this action.Contrary to the Supreme Court's determination, under the circumstances of this case, the absence of an affidavit, while a defect in the appellant's motion, was not fatal to the motion ( seeAlvarez v. Prospect Hosp., 68 N.Y.2d at 325, 508 N.Y.S.2d 923, 501 N.E.2d 572;Olan v. Farrell Lines, 64 N.Y.2d at 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229;Carniol v. Carniol, 288 A.D.2d at 422, 733 N.Y.S.2d 485;Finnegan v. Staten Is. R.T. Operating Auth., 251 A.D.2d at 540, 674 N.Y.S.2d 734;see alsoFowler v. New York City Tr. Auth., 245 A.D.2d at 416, 666 N.Y.S.2d 459;Standard Fruit & S.S. Co., Div. of Castle & Cooke v. Russo, 67 A.D.2d at 970, 413 N.Y.S.2d 455).

Turning to the merits, the operator of a motor vehicle has a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident ( seeBalducci v....