Butler v. Cruz

Butler v Cruz (2021 NY Slip Op 02095) Butler v Cruz 2021 NY Slip Op 02095 Decided on April 06, 2021 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 and Entered: April 06, 2021 Before: Gische, J.P., Kapnick, Oing, Moulton, JJ. Index No. 301399/15 Appeal No. 13509 Case No. 2020-03955 [*1]Trevor M. Butler, Plaintiff-Appellant, v Jose R. Cruz et al., Defendants-Respondents. Law Offices of Aleksandr Vakarev, Brooklyn (Harlan Wittenstein of counsel), for appellant. Rawle & Henderson LLP, New York (Stephen J. Levy of counsel), for respondents. Order, Supreme Court, Bronx County (Robert T. Johnson, J.), entered on or about April 20, 2020, which denied plaintiff's motion for summary judgment on the issue of liability, unanimously affirmed, without costs. In opposition to plaintiff's prima facie showing by affidavit that defendant's truck was backing up unsafely when it collided with his moving vehicle, defendants raised an issue of fact by submitting the individual defendant's affidavit that his truck was stopped when plaintiff's vehicle rear-ended it (see Martinez v Clean Air Car Serv. & Parking Branch One, LLC, 148 AD3d 569 [1st Dept 2017]; Susino v Panzer, 127 AD3d 523 [1st Dept 2015]). The fact that the uncertified police accident report contains statements that may amount to admissions by defendants' driver does not compel a different result. Plaintiff's failure to proffer the report in his motion in chief and only on his reply deprived defendants of the opportunity to address the driver's statements (see Estate of Bachman v Hong, 169 AD3d 436, 437 [1st Dept 2019]). We have considered plaintiff's remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 6, 2021