Pane v. Cisilino , 144 A.D.3d 567 ( 2016 )

Pane v Cisilino (2016 NY Slip Op 07858)

Pane v Cisilino

2016 NY Slip Op 07858

Decided on November 22, 2016

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 November 22, 2016
Mazzarelli, J.P., Sweeny, Andrias, Webber, Gesmer, JJ.

2263 162093/14

[*1]Sebastian Pane, Plaintiff-Appellant,

v

Pablo Cisilino, et al., Defendants-Respondents.

Barasch McGarry Salzman & Penson, New York (Dominique Penson of counsel), for appellant.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondents.

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered March 1, 2016, which denied plaintiff's motion for summary judgment on the issue of liability with leave to renew upon the completion of discovery, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established his entitlement to judgment as a matter of law in this action for personal injuries sustained in a motor vehicle accident. Plaintiff submitted, inter alia, his affidavit averring that this was a one-car accident which occurred when defendant Cisilino lost control of the vehicle he was driving, and in which plaintiff was a passenger (see e.g. Al-Nashash v Soutra Limousine Inc., 115 AD3d 534 [1st Dept 2014]; Mughal v Rajput, 106 AD3d 886, 888 [2d Dept 2013]).

In opposition, defendants failed to raise an issue of fact. Cisilino's averment in his affidavit that he could not recall the accident does not constitute a nonnegligent explanation for the accident (see e.g. Soto-Maroquin v Mellet, 63 AD3d 449, 450 [1st Dept 2009]). Furthermore, the mere hope that evidence sufficient to defeat the summary judgment motion may be uncovered during discovery is an insufficient basis upon which to deny the motion (see Guerrero v Milla, 135 AD3d 635 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 22, 2016

CLERK