Pratt v. Jimenez

Pratt v Jimenez (2016 NY Slip Op 03593)

Pratt v Jimenez

2016 NY Slip Op 03593

Decided on May 5, 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 May 5, 2016
Sweeny, J.P., Acosta, Manzanet-Daniels, Gische, Gesmer, JJ.

1075 306518/10

[*1]Richard R. Pratt, et al., Plaintiffs-Appellants,

v

Elsa Jimenez, et al., Defendants-Respondents, Elrac, Inc., Defendant.

Law Offices of Alexander Bespechny, Bronx (Louis A. Badolato of counsel), for appellants.

Peknic, Peknic & Schaefer, LLC, Long Beach (Brian M. Peknic of counsel), for Elsa Jimenez, respondent.

Law Offices of John Trop, Yonkers (David Holmes of counsel), for Juan Roman Torres-Lopez, respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered September 9, 2014, which granted the motion of defendant Jimenez for summary judgment dismissing the complaint and cross claim as against her, unanimously affirmed, without costs.

In a two-car accident in which the passengers of one of the alleged offending vehicles seek damages from both drivers, defendant Jimenez demonstrated her prima facie entitlement to judgment through her deposition testimony that she was traveling at a reasonable rate of speed under the prevailing conditions and did not leave her lane of traffic. Plaintiffs' speculation that the moving defendant may have been negligent and may have traveled outside of her lane because of the absence of painted lane dividers failed to raise a material issue of fact in opposition. Their purely fact-based argument that such defendant failed to take reasonable measures to avoid the accident is improperly raised for the first time on appeal and we decline to consider it (see HSBC Bank USA v Carvalho, 128 AD3d 471 [1st Dept 2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 5, 2016

DEPUTY CLERK