Brito v. Gomez ( 2018 )

Brito v Gomez (2018 NY Slip Op 06790)

Brito v Gomez

2018 NY Slip Op 06790

Decided on October 11, 2018

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 on October 11, 2018
Sweeny, J.P., Tom, Gesmer, Kern, Moulton, JJ.

7281 306267/14

[*1]Benedicta Brito, Plaintiff-Appellant,

v

Rafael Gomez, et al., Defendants-Respondents.

Elefterakis, Elefterakis & Panek, New York (Oliver R. Tobias of counsel), for appellant.

Lewis, Brisbois & Bisgaard & Smith, LLP, New York (Nicholas P. Hurzeler of counsel), for respondents.

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about August 16, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff failed to establish entitlement to judgment as a matter of law in this action for personal injuries sustained in a motor vehicle collision. The deposition testimony submitted in support of plaintiff's motion contains conflicting accounts as to her whereabouts at the time of the collision. Plaintiff testified that she was sitting inside her vehicle with the driver's side door open when defendant Gomez, operating a school bus owned by defendant Don Thomas Bus, Inc., struck her open door. However, Gomez and defendants' bus matron both testified that plaintiff was standing on the sidewalk, away from her vehicle, when the collision occurred. These conflicting accounts raise triable issues regarding whether, and how, the collision caused plaintiff's claimed injuries (see Oluwatayo v Dulinayan, 142 AD3d 113, 116-117 [1st Dept 2016]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 11, 2018

CLERK