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Gonzalez v. 98 Mag Leasing Corp.6/15/2000
In this personal injury action, the issues presented are whether the trial court abused its discretion by entertaining defendants' cross motion for summary judgment more than 120 days after the filing of the note of issue (see, CPLR 3212 ) and whether summary judgment was properly granted as a matter of law. We answer that there was no abuse of discretion and that defendants were entitled to summary judgment.
While delivering food in Brooklyn, plaintiff Cirino Gonzalez, an employee of third-party defendant Golden Nut, Inc., was struck by a truck owned by defendant 98 Mag Leasing and driven by defendant Kenneth W. Hateau, an employee of defendant Center Island Banana. As a result, plaintiff suffered extensive injuries.
Plaintiff commenced this personal injury action against 98 Mag Leasing , Center Island Banana and Kenneth Hateau, alleging that their negligence in operating and maintaining the truck was the proximate cause of his injuries. After issue was joined, defendants commenced a third-party action for contribution and/or indemnification both against the New York City Transit Authority (NYCTA), alleging that it had negligently parked its buses near the intersection of Tillary and Jay Streets, where the accident occurred, and against Golden Nut for failing to properly supervise and train its employee.
During discovery, plaintiff and defendant Hateau were deposed, as were two witnesses from the accident scene identified in the police report. Plaintiff has no memory of the accident. Hateau testified that he was driving within the speed limit with an unobstructed view of the road. While concentrating on the approaching intersection, he saw a red blur in his passenger side mirror, heard a thump and then applied his brakes. When he got out of his truck, Hateau realized that he had struck plaintiff, who was lying unconscious in the roadway. Michael Nicosia testified on March 1, 1996 that he heard tires screeching and then a loud thump one or two seconds later. Nicosia stated that only when he heard the thump did he look up and see plaintiff lying in the middle lane of the roadway.
On December 13, 1996, plaintiff filed a note of issue. Defendants timely moved to vacate the note of issue "due to outstanding discovery." Defendants argued that a court order, dated September 6, 1996, directed the NYCTA to produce for deposition both the bus driver, who may have witnessed the accident, and Ruth Moore, an eyewitness identified in the police report. The motion was twice adjourned by the court, sua sponte, until May 14, 1997. Although the court declined to strike the note of issue, it granted defendants' motion to the extent of allowing discovery to continue.
Ruth Moore, deposed on January 8, 1997, testified that she witnessed plaintiff come from around the corner on Tillary Street and "dart toward the street" from between two parked cars. According to Moore, plaintiff did not look either way before he "ran right out into the street" and "hit the truck."
In August 1997, NYCTA moved for summary judgment dismissing the third-party complaint. Thereafter, on November 18, 1997, defendants cross-moved for summary judgment dismissing plaintiff's complaint or, in the alternative, an order denying NYCTA's motion for summary judgment. Defendants relied primarily on Moore's deposition to support their contention that Hateau operated his vehicle in a reasonably prudent manner and that plaintiff's injuries were caused solely by his conduct.
In opposition, plaintiff argued that there were material issues of fact regarding the circumstances of the accident. Plaintiff submitted the affidavit of an accident reconstruction expert who concluded that, ba
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