

Turner v Butler (2016 NY Slip Op 03498)





Turner v Butler


2016 NY Slip Op 03498


Decided on May 4, 2016


Appellate Division, Second 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 May 4, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
SANDRA L. SGROI, JJ. 


2015-07746
 (Index No.  15700/13)

[*1]Kumosan Turner, appellant, 
vMichael G. Butler, et al.,  respondents. 


Restivo & Murphy LLP, Garden City, NY (Todd A. Restivo of counsel), for appellant. 
Roe & Associates, Garden City, NY (Patrick B. McKeown of counsel), for respondents. 

DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Nahman, J.), entered March 19, 2015, which denied those branches of his motion which were for summary judgment on the issue of liability and dismissing the defendants' fourth and twelfth affirmative defenses. 
ORDERED that the order is reversed, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing the defendants' fourth and twelfth affirmative defenses are granted. 
The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability and dismissing the defendants' fourth and twelfth affirmative defenses.  The evidence submitted by the plaintiff demonstrated that the vehicle operated by the defendant Michael G. Butler and owned by the defendant Jean L. Butler struck the vehicle owned and operated by the plaintiff in an intersection.  The evidence further demonstrated that the sole proximate cause of the accident was the defendant driver's failure to stop at a red traffic signal and procession through the intersection, in violation of Vehicle and Traffic Law § 1111(d)(2) (see Monteleone v Jung Pyo Hong, 79 AD3d 988; Ramos v Triboro Coach Corp., 31 AD3d 625; Borges v Zukowski, 22 AD3d 439; Casanova v New York City Tr.  Auth.,  279 AD2d 495).  In opposition, the defendants failed to raise a triable issue of fact (see Deleg v Vinci, 82 AD3d 1146; Cavitch v Mateo, 58 AD3d 592). 
Furthermore, contrary to the defendants' contention, the plaintiff's motion was not premature since the defendants failed to demonstrate that discovery might lead to relevant evidence or that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736).  The defendants' professed need to conduct discovery did not warrant denial of the motion since they already had personal knowledge of the relevant facts (see Abramov v Miral Corp., 24 AD3d 397, 398). " The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib.,  Inc., 34 AD3d 759, 760; see Monteleone v Jung Pyo Hong, 79 AD3d 988; Corwin v Heart Share Human Servs.  of N.Y., 66 AD3d 814). 
Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing the defendants' fourth and twelfth affirmative defenses. 
MASTRO, J.P., DICKERSON, HALL and SGROI, JJ.,  concur. 
ENTER:
Aprilanne Agostino
Clerk of the Court


