[Download] "Charles Glover" by Supreme Court of New York ~ eBook PDF Kindle ePub Free
eBook details
- Title: Charles Glover
- Author : Supreme Court of New York
- Release Date : January 26, 1981
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 52 KB
Description
In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, entered May 1, 1980, which granted plaintiffs motion for summary judgment on the issue of liability and directed an assessment of damages. Order reversed, on the law, without costs or disbursements, and plaintiffs motion is denied. The general rule is that "On a motion for summary judgment, the moving party has the burden to set forth evidentiary facts to establish his cause sufficiently to entitle him to a judgment as a matter of law; anything less requires a denial of the motion, even where the opposing papers are insufficient" (Greenberg v Manlon Realty, 43 A.D.2d 968, 969). At bar, plaintiffs motion papers, even when read together with the excerpt from the investigative report submitted by defendant, do not establish his right to summary judgment since they do not sufficiently demonstrate that defendant was the owner or operator of the vehicle that struck plaintiff. Even if such a demonstration had been made, the granting of summary judgment was unawarranted in light of excerpts from the plaintiffs examination before trial and from the plaintiffs hospital discharge summary, which tended to show that plaintiff was intoxicated at the time of the accident. This is particularly the case when such evidence is considered together with defendants attorneys averment that, on the basis of notes of interviews had with a named witness to the accident, that witness would testify that the traffic light was green for moving traffic and that plaintiff "was in effect dancing across the street as if he appeared to be under the influence of something." (See Phillips v Kantor & Co., 31 N.Y.2d 307, 312.) Under the circumstances of this case, this evidentiary matter creates at least a "doubt as to the existence of a triable issue" (see Moskowitz v Garlock, 23 A.D.2d 943, 944; see, also, Rotuba Extruders v Ceppos 46 N.Y.2d 223, 231), i.e., whether and to what extent, if any, plaintiffs conduct contributed to the accident. Titone, J.P., Lazer, Gulotta and Margett, JJ., concur.