

Downey v Mazzioli (2016 NY Slip Op 01610)





Downey v Mazzioli


2016 NY Slip Op 01610


Decided on March 8, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 8, 2016

Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.


438

[*1]Barrett C. Downey,	22829/14E Plaintiff-Appellant,
vAnne Marie K. Mazzioli, Defendant, Orfelina D. Jorge, et al., Defendants-Respondents.


Reardon & Sclafani, P.C., Tarrytown (Michael V. Sclafani of counsel), for appellant.
Russo, Apoznanski & Tambasco, Melville (Gerard Ferrara of counsel), for respondents.

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered February 13, 2015, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability as against defendants Orfelina D. Jorge and Julio C. Jorge (collectively Jorge), unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of Jorge's liability, by submitting his affidavit averring that Jorge's vehicle struck the vehicle owned and operated by defendant Mazzioli in the rear, while plaintiff was a passenger in Mazzioli's vehicle (see Asante v Williams, 227 AD2d 123 [1st Dept 1996]). The potential issue of apportionment of fault as between Jorge and Mazzioli does not restrict plaintiff's right to partial summary judgment on the issue of liability as against the former (see Davis v Turner, 132 AD3d 603 [1st Dept 2015]; Couillard v Shaw Envtl. & Infrastructure Eng'g of N.Y., P.C., 125 AD3d 509 [1st Dept 2015]). The court properly rejected Jorge's contention that plaintiff's motion was premature, since "[t]he mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion" (Davis at 603). Nor does defendant Jorge's attorney's affirmation satisfy defendant's burden of establishing a nonnegligent explanation for the rear-end collision.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 8, 2016
DEPUTY CLERK


