Dalrymple v. Morocho

Summary

The New York Appellate Division, Second Department, affirmed an order granting Roman Morocho summary judgment in a personal injury action arising from a bicycle-vehicle collision. The court held that the plaintiff's unsafe lane change established Morocho's prima facie lack of fault and that the plaintiff's counsel's affirmation was insufficient to raise a triable issue of fact or show that the motion was premature.

Holdings

1. Morocho established prima facie that Dalrymple made an unsafe lane change into the path of Morocho's vehicle in violation of Vehicle and Traffic Law § 1128(a), that Morocho had no opportunity to avoid the collision, and that Morocho was not at fault or a proximate cause of the accident.
2. Plaintiff's counsel's affirmation, which was plaintiff's sole submission in opposition, was insufficient to raise a triable issue of fact.
3. The motion was not shown to be premature because plaintiff failed to demonstrate that discovery might lead to relevant evidence or that essential facts were exclusively within Morocho's knowledge and control.
4. The remaining contention, raised for the first time on appeal, was not properly before the Appellate Division.

Questions Presented

1. Whether Morocho established prima facie that he was not at fault and that his alleged negligence was not a proximate cause of the collision.
2. Whether plaintiff's counsel's affirmation raised a triable issue of fact in opposition to summary judgment.
3. Whether the summary-judgment motion was premature under CPLR 3212(f).
4. Whether plaintiff's remaining contention, raised for the first time on appeal, was properly before the court.

Disposition

affirmed