        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

578
CA 11-00017
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


ROBIN GODLEWSKI, AS PARENT AND NATURAL GUARDIAN
OF KRISTEN GODLEWSKI, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CARTHAGE CENTRAL SCHOOL DISTRICT AND DIANE
GIBEAU, DEFENDANTS-RESPONDENTS.


STANLEY LAW OFFICES, LLP, SYRACUSE (PAUL STYLIANOU OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

CONBOY, MCKAY, BACHMAN & KENDALL, LLP, WATERTOWN (STEPHEN W. GEBO OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Jefferson County (Hugh
A. Gilbert, J.), dated April 8, 2010 in a personal injury action. The
order granted the motion of defendants for summary judgment and
dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is denied
and the complaint is reinstated.

     Memorandum: Plaintiff, as parent and natural guardian of her
daughter, commenced this action seeking damages for injuries allegedly
sustained by her daughter when she fell out of her seat in a school
bus owned by defendant Carthage Central School District and operated
by defendant Diane Gibeau. We agree with plaintiff that Supreme Court
erred in granting defendants’ motion for summary judgment dismissing
the complaint. Defendants cannot establish their entitlement to
summary judgment dismissing the complaint by pointing to alleged gaps
in plaintiff’s proof (see generally Orcutt v American Linen Supply
Co., 212 AD2d 979). Even assuming, arguendo, that defendants met
their initial burden on the motion, we conclude that plaintiff raised
triable issues of fact (see generally Zuckerman v City of New York, 49
NY2d 557, 562). In opposition to the motion, plaintiff submitted,
inter alia, the deposition testimony of her daughter that the bus was
traveling at an unsafe speed and that the accident occurred when the
bus made a sudden turn at that speed (see DiSalvatore v New York City
Tr. Auth., 45 AD3d 402). Further, “[a]lthough there are some
inconsistencies between the affidavits submitted by plaintiff[] in
opposition to the motion and [the] deposition testimony [of her
daughter], we reject defendant[s’] contention under the circumstances
of this case that those affidavits [and that deposition testimony] are
                                 -2-                           578
                                                         CA 11-00017

an attempt to raise feigned issues of fact . . . Any such
inconsistencies present credibility issues to be resolved at trial”
(Dietzen v Aldi Inc. [New York], 57 AD3d 1514, 1514).




Entered:   April 29, 2011                       Patricia L. Morgan
                                                Clerk of the Court
