| Lurrie v Atwood |
| 2014 NY Slip Op 05776 |
| Decided on August 13, 2014 |
| 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 August 13, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
MARK C. DILLON, J.P.
L. PRISCILLA HALL
ROBERT J. MILLER
SYLVIA O. HINDS-RADIX, JJ.
2013-03457
(Index No. 10673/11)
v
Denise Atwood, appellant.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Michael A. Baranowicz and Donald S. Neumann, Jr., of counsel), for appellant.
Garbarini & Scher, P.C., New York, N.Y. (William D. Buckley of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated February 13, 2013, which denied her renewed motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On September 4, 2010, the plaintiff Wendy Ann Lurrie and her husband, the plaintiff Nick Calise, were riding their bicycles eastbound along Rockaway Beach Boulevard in the designated bicycle lane. In the vicinity of 126-11 Rockaway Beach Boulevard, the defendant's vehicle allegedly was stopped in the bicycle lane. As Lurrie tried to pass the defendant's vehicle on the left, the vehicle moved to the left, causing Lurrie to brake hard and fall from her bicycle. Lurrie, and Calise suing derivatively, commenced this action against the defendant.
The Supreme Court properly denied the defendant's renewed motion for summary judgment dismissing the complaint. The defendant failed to establish, prima facie, that she was not the driver of the vehicle involved in the subject accident in which Lurrie allegedly was injured (see Alvarez v Prospect Hosp ., 68 NY2d 320, 324; Zuckerman v City of New York , 49 NY2d 557, 562). Since the defendant did not sustain her prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiffs in opposition were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr ., 64 NY2d 851, 853).
DILLON, J.P., HALL, MILLER and HINDS-RADIX, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court