Yuhua Han v. Gladyshev , 153 A.D.3d 762 ( 2017 )

Han v Gladyshev (2017 NY Slip Op 06217)

Han v Gladyshev

2017 NY Slip Op 06217

Decided on August 16, 2017

Appellate Division, Second 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 August 16, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RANDALL T. ENG, P.J.
JOHN M. LEVENTHAL
SANDRA L. SGROI
JOSEPH J. MALTESE, JJ.

2016-04735
(Index No. 5902/15)

[*1]Yuhua Han, et al., appellants,

v

Eduard Gladyshev, also known as Eduaro Gladyshev, respondent.

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellants.

Russo & Tambasco, Melville, NY (Susan J. Mitola of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Spodek, J.), dated April 5, 2016, which denied their motion for summary judgment on the issue of liability with leave to renew upon the completion of discovery.

ORDERED that the order is affirmed, with costs.

The plaintiff Yuhua Han (hereinafter the injured plaintiff) allegedly was walking across Ocean Avenue in Brooklyn when she was struck by the defendant's vehicle. Thereafter, the injured plaintiff, and her husband suing derivatively, commenced this action against the defendant. Before anyone was deposed, the plaintiffs moved for summary judgment on the issue of liability. The Supreme Court denied the motion with leave to renew upon the completion of discovery. We affirm.

Contrary to the plaintiffs' contention, the Supreme Court properly determined that, at this stage of the case, the plaintiffs' motion was premature. No one has been deposed, and the defendant has not had an adequate opportunity to conduct discovery. Moreover, the injured plaintiff and the defendant submitted affidavits containing discrepancies pertaining to the circumstances of the subject accident (see Bond v DeMasco, 84 AD3d 1292, 1293; Cardone v Poidamani, 73 AD3d 828).

Accordingly, the Supreme Court properly denied the plaintiffs' motion for summary judgment on the issue of liability with leave to renew upon completion of discovery.

ENG, P.J., LEVENTHAL, SGROI and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court