Baab v. HP, Inc.

211 A.D.3d 783

181 N.Y.S.3d 124

John BAAB, respondent,

v.HP, INC., et al., appellants.

2021–07887

Index No. 523601/18

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

Submitted—September 30, 2022

December 14, 2022

Iaconis Fusco, LLP, Malverne, NY (Joseph P. Fusco of counsel), for appellants.

Arze & Mollica, LLP, Brooklyn, NY (Raymond J. Mollica of counsel), for respondent.

COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated August 31, 2021. The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In November 2018, the plaintiff commenced this action against the defendant Nicole Ferrari (hereinafter the defendant driver) to recover damages for personal injuries he alleged he sustained in April 2018 when the bicycle that he was riding at or near an intersection in Brooklyn was struck by a motor vehicle operated by the defendant driver. The plaintiff thereafter amended the complaint and added the defendant HP, Inc., the owner of the motor vehicle, as a defendant. The parties were deposed and thereafter the defendants moved for summary judgment dismissing the complaint. In an order dated August 31, 2021, the Supreme Court denied the motion. The defendants appeal. We affirm.

A motion for summary judgment " ‘should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility’ " ( Abdenbi v. Walgreen Co., 197 A.D.3d 1140, 1140, 151 N.Y.S.3d 368, quoting Ruiz v. Griffin, 71 A.D.3d 1112, 1115, 898 N.Y.S.2d 590 ). Here, in support of their motion, the defendants submitted, inter alia, transcripts of the deposition testimony of the defendant driver, as well as of the plaintiff. Viewing the evidence in the light most favorable to the plaintiff and giving him the benefit of all reasonable inferences that can be drawn from the evidence (see Abdenbi v. Walgreen Co., 197 A.D.3d at 1140, 151 N.Y.S.3d 368 ; Valentin v. Parisio, 119 A.D.3d 854, 855, 989 N.Y.S.2d 621 ), the defendants failed to eliminate all triable issues of fact as to whether the defendant driver was negligent in the happening of the accident.

Since the defendants’ submissions demonstrated that there are triable issues of fact as to...