Davis v. Colon

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Plug, J.), dated November 29, 2004, which denied his motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, without costs or disbursements. The Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint. In support of his motion, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Where, as here, there is inconsistent deposition testimony as to how and where the subject accident occurred, a triable issue of fact exists, precluding summary judgment (see Aslam v Weiss, 308 AD2d 426, 427 [2003]). Ritter, J.P., Luciano, Mastro and Skelos, JJ., concur.