Otty Cab Corp. v. Nazir

• Decision Date: 01 December 2017
• Docket Number: No. 2016–1252 Q C.,2016–1252 Q C.
• Citation: 72 N.Y.S.3d 517 (Table)
• Parties: OTTY CAB CORP., Appellant, v. Asif NAZIR, Respondent.
• Court: New York Supreme Court — Appellate Term

72 N.Y.S.3d 517 (Table)

OTTY CAB CORP., Appellant,
v.
Asif NAZIR, Respondent.

No. 2016–1252 Q C.

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Dec. 1, 2017.

Eppinger, Reingold & Korder (Mitchell L. Korder, Esq.), for appellant.

Sheppard, Mullin, Richter & Hampton, LLP (Jean N. Ripley, Esq.), for respondent.

Present: MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ

Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered March 15, 2016. The order denied plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, without costs.

Plaintiff, a yellow medallion New York City taxicab corporation, commenced this action to recover the sum of $7,282.89 for damage to plaintiff's taxicab as a result of a motor vehicle accident. In plaintiff's summons and endorsed complaint, plaintiff alleged that defendant, who was driving the taxicab under an alleged weekly lease, had, at the time of the accident, been negligent in operating the taxicab. After issue had been joined, plaintiff moved for summary judgment, contending that defendant had been solely responsible for the accident, a rear-end collision with another vehicle. The Civil Court denied plaintiff's motion in an order entered March 15, 2016, from which plaintiff appeals.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). In support of its motion for summary judgment, on the issue of liability, plaintiff submitted a police accident report (MV–104AN) containing a description of the accident, as well as an MV–104 accident report that had been completed by defendant, in which he stated that the car in front of him had suddenly stopped and that the front of his taxicab had hit the rear of that car. Although the police accident report was inadmissible, as the police officer who had completed the report had not personally observed the accident (see ...