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Kary Ventura-Sanchez v Royal Waste Servs., Inc., 2023 NY Slip Op 06555 [222 AD3d 913]

December 20, 2023

Appellate Division, Second Department

[*1]

Kary Ventura-Sanchez, Appellant,

v

Royal Waste Services, Inc., Respondent, et al., Defendant.

Gambone Law Group, PLLC (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (Judy C. Selmeci and Guy J. Levasseur of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert I. Caloras, J.), dated April 25, 2022. The order granted the motion of the defendant Royal Waste Services, Inc., for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is reversed, on the law, with costs, and the motion of the defendant Royal Waste Services, Inc., for summary judgment dismissing the complaint insofar as asserted against it is denied.

On December 7, 2018, at about 9:00 p.m., the plaintiff’s vehicle was allegedly sideswiped by a garbage truck on Liberty Avenue in Queens, allegedly causing her to sustain personal injuries. The garbage truck left the scene, and the police accident report contained a partial license plate number of the garbage truck of 22928. The defendant Royal Waste Services, Inc. (hereinafter Royal), owned and operated a garbage truck with license plate number 22928MK.

After issue was joined in this action, Royal moved for summary judgment dismissing the complaint insofar as asserted against it, contending that its vehicle was not involved in the accident, based upon the deposition testimony and the affidavit of its general manager, and affidavits of an employee who characterized himself as head of vehicle painting, stating that, based upon alleged business records, its truck with the license plate number 22928MK, also known as truck number 152, was, at the time of the accident, in the mechanics shop awaiting a paint job. Although the general manager testified that the head of vehicle painting kept the records, the affidavits of Royal’s head of vehicle painting stated that he had no independent recollection of the vehicle in issue, and did not keep records of the vehicles he painted. The color of the truck was white in the area of the front cab, and blue with red on the sides beyond the area of the cab.

The plaintiff and her passenger, who did not see the front of the truck, described it as blue in color. The plaintiff testified at her deposition that she did not see the license plate number on the truck on the night of the incident, and she did not know the license plate number of the truck involved. However, the plaintiff’s passenger testified at his deposition that, although he did not see the license plate number himself, before the police arrived, a young man came up to them and showed them a photograph. The plaintiff wrote down the license plate number depicted in the photograph on a piece of paper. They did not have this young man’s contact information and the [*2] plaintiff’s passenger did not have any information about this man’s identity. The passenger asked the young man to wait with them for the police to arrive, but he refused and left.

The plaintiff in opposition submitted a certified copy of the police accident report and argued that Royal did not establish its entitlement to judgment as a matter of law, and in any case, there was a triable issue of fact. The order appealed from granted Royal’s motion on the ground that Royal established as a matter of law that the truck with license plate number 22928MK was not involved in the accident, and the plaintiff failed to raise a triable issue of fact. The plaintiff appeals.

On its motion for summary judgment, Royal failed to establish its entitlement to judgment as a matter of law, which requires more than pointing to gaps in the plaintiff’s proof ( see Feldberg v Skorupa , 151 AD3d 1016 [2017]). Royal’s evidence indicated that it owned a vehicle with a license plate number which matched the number in the police accident report which was submitted by Royal, of a color similar to the color of the garbage truck involved in the accident.

Further, the deposition testimony and affidavit of Royal’s general manager, and the affidavits of Royal’s employee, failed to lay a proper foundation as to the admissibility of Royal’s business records indicating that the vehicle allegedly involved in the accident was not in service at the time of the accident ( see Hochhauser v Electric Ins. Co. , 46 AD3d 174 , 179 [2007]). The moving party’s failure to make a prima facie showing of entitlement to summary judgment requires a denial of the motion, regardless of the sufficiency of the opposing papers ( see Boulos v Lerner-Harrington , 124 AD3d 709 , 710 [2015]).

Accordingly, Royal’s motion for summary judgment dismissing the complaint insofar as asserted against it should have been denied. LaSalle, P.J., Barros, Voutsinas and Ventura, JJ., concur..