Bhatia v. Cummings , 24 N.Y.S.3d 523 ( 2016 )

Bhatia v Cummings (2016 NY Slip Op 00918)

Bhatia v Cummings

2016 NY Slip Op 00918

Decided on February 10, 2016

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 February 10, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
LEONARD B. AUSTIN
JOSEPH J. MALTESE
BETSY BARROS, JJ.

2015-08509
(Index No. 15885/12)

[*1]Lalit Bhatia, respondent, et al., plaintiff,

v

Wade W. Cummings, appellant.

Richard T. Lau, Jericho, NY (Kathleen E. Fioretti of counsel), for appellant.

McCabe, Collins & McGeough, Fowler, Levine & Nogan, LLP, Carle Place, NY (Patrick M. Murphy of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Asher, J.), entered June 12, 2015, as granted the motion of the plaintiff Lalit Bhatia for summary judgment dismissing the defendant's counterclaim against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the plaintiff Lalit Bhatia for summary judgment dismissing the defendant's counterclaim against him is denied.

On October 18, 2009, the plaintiff Lalit Bhatia (hereinafter Lalit) was driving a vehicle in which his wife, the plaintiff Seema Bhatia, was a passenger. At or near the intersection of North Country Road and Groveland Park Boulevard, in the Town of South Beach, the plaintiffs' vehicle was struck in the rear by a vehicle operated by the defendant.

Lalit established his prima facie entitlement to judgment as a matter of law dismissing the defendant's counterclaim against him by demonstrating that while the plaintiffs' vehicle was in the process of slowing down to turn right onto Groveland Park Boulevard, with its right turn signal on, it was struck in the rear by the vehicle operated by the defendant. However, in opposition, the defendant raised a triable issue as to Lalit's negligence by submitting evidence in the form of the defendant's affidavit, in which he stated that Lalit suddenly and without warning "slammed on his brakes and attempted to make a right turn onto Groveland Park Boulevard" without proper signaling (see Gleason v Villegas, 81 AD3d 889; Delayhaye v Caledonia Limo & Car Serv., Inc., 49 AD3d 588; Maschka v Newman, 262 AD2d 615, 616).

Accordingly, the Supreme Court should have denied Lalit's motion for summary judgment dismissing the defendant's counterclaim against him.

MASTRO, J.P., AUSTIN, MALTESE and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court