 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Peters v. City of New York11/23/2004
ks personal knowledge of the essential facts, is of no probative value and is insufficient to support an award of summary judgment dismissing Peters' complaint as against Ahmed (see Salas v Town of Lake Luzerne, 265 AD2d 770, 771 ; Adam v Cutner & Rathkopf, 238 AD2d 234, 239 ; Werdein v Johnson, 221 AD2d 899, 900 ). Thus, Ahmed's cross motion, insofar as it seeks summary judgment dismissing Peters' complaint as against him in action # 1, must be denied.
Cowan opposes Ahmed's cross motion insofar as it seeks summary judgment dismissing her complaint as against him in action # 2. She points to the fact that Ahmed has never been deposed in this action and argues that Ahmed merely points to gaps in her proof, i.e., that she did not observe the accident between him and Peters and that Peters has no recollection of how the accident happened. Cowan argues that Ahmed, therefore, has not affirmatively established that he was free from negligence so as to entitle him to summary judgment dismissing her complaint as against him.
Cowan's argument is rejected. While it is true that Ahmed has not made a prima facie showing that he was free from negligence with respect to his motor vehicle accident with Peters, such alleged negligence was not the proximate cause of Cowan's injuries. As discussed above, Church-Ford testified at his deposition that he observed the accident scene from a block away, and it was his independent act of striking Peters' vehicle, propelling it into the ambulance, which then struck Cowan, that was the sole proximate cause of the second accident (see Whitehead, 304 AD2d at 755; Ely, 302 AD2d at 489; Siegel, 294 AD2d at 562). Indeed, Church-Ford did not hit Ahmed's vehicle and it was not involved in Cowan's accident. Thus, Ahmed's collision with Peters' vehicle merely furnished the condition or occasion for the occurrence of the accident and was not the proximate cause of Cowan's accident (see Whitehead, 304 AD2d at 755; Ely, 302 AD2d at 489; Siegel, 294 AD2d at 562). Summary judgment dismissing Cowan's complaint as against Ahmed in action # 2 must, therefore, be granted (see CPLR 3212 ).
Accordingly, Peters' motion in action # 1, Cowan's motion in action # 2, Peters' cross motion in action # 2, and Ahmed's cross motion in action # 2, for sanctions, pursuant to CPLR 3126, against the City and the NYCHHC for failure to comply with discovery, are denied. The cross motion by the City and the NYCHHC for summary judgment dismissing Peters' complaint as against them in action #1 and Cowan's complaint as against action # 2, is granted. Peters' motion for summary judgment dismissing Cowan's complaint as against him in action # 2 is granted. Ahmed's cross motion for summary judgment is denied insofar as it seeks summary judgment dismissing Peters' complaint as against him in action #1 and is granted insofar as it seeks summary judgment dismissing Cowan's complaint as against him in action # 2.
This case is hereby transferred to a non-city part as the city is no longer a party to this action.
This constitutes the decision and order of the court.
|