Ortiz v. AGL Trucking Corp. , 10 N.Y.S.3d 897 ( 2015 )

Ortiz v AGL Trucking Corp. (2015 NY Slip Op 05652)

Ortiz v AGL Trucking Corp.

2015 NY Slip Op 05652

Decided on July 1, 2015

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 July 1, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOHN M. LEVENTHAL
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.

2015-01530
(Index No. 23772/12)

[*1]Jose Ramon Ortiz, respondent,

v

AGL Trucking Corp., et al., appellants.

Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock and Thomas Torto of counsel), for appellants.

Cellino & Barnes, Garden City, N.Y. (John Lavelle and Ellen B. Sturm of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (King, J.), dated January 7, 2014, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff alleged that while he was riding his bicycle, he was struck by a truck that was owned by the defendant AGL Trucking Corp. and operated by the defendant Park Fwan Wong.

In support of their motion for summary judgment dismissing the complaint, the defendants submitted evidence which included the transcripts of the deposition testimony of the plaintiff and the defendant Park Fwan Wong, as well as the affidavit of that defendant. These submissions failed to eliminate all triable issues of fact as to whether Park Fwan Wong was negligent in violating Vehicle and Traffic Law §§ 1146 and 1122-a, and whether such negligence was a proximate cause of the accident (see Alvarez v Prospect Hosp., 68 NY2d 320, 324) . Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.

DILLON, J.P., LEVENTHAL, COHEN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court