Majority
p. 446Richard R. Pratt et al., Appellants, v Elsa Jimenez et al., Respondents, et al., Defendant. [29 NYS3d 183]
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered September 9, 2014, which granted the motion of defendant Jimenez for summary judgment dismissing the complaint and cross claim as against her, unanimously affirmed, without costs.
In a two-car accident in which the passengers of one of the alleged offending vehicles seek damages from both drivers, defendant Jimenez demonstrated her prima facie entitlement to judgment through her deposition testimony that she was traveling at a reasonable rate of speed under the prevailing
p. 447
conditions and did not leave her lane of traffic. Plaintiffs’ speculation that the moving defendant may have been negligent and may have traveled outside of her lane because of the absence of painted lane dividers failed to raise a material issue of fact in opposition. Their purely fact-based argument that such defendant failed to take reasonable measures to avoid the accident is improperly raised for the first time on appeal and we decline to consider it (see HSBC Bank USA v Carvalho, 128 AD3d 471 [1st Dept 2015]).
Concur — Sweeny, J.P., Acosta, Manzanet-Daniels, Gische and Gesmer, JJ.
Cases cited
- HSBC Bank USA v. Carvalho 128 AD3d 471 p. 447