Cruz v. Skeritt

Order, Supreme Court, Bronx County (Sharon A.M. Aarons, J.), entered June 23, 2015, which granted plaintiff’s motion for summary judgment on the issues of liability and compliance with the threshold “serious injury” requirement of Insurance Law § 5102 (d) and ordered a trial on damages, unanimously modified, on the law, to deny plaintiff’s motion as premature with respect to the serious injury issue, and vacate the order regarding a damages trial, and otherwise affirmed, without costs.

Plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability. He submitted evidence showing that defendant driver made an illegal U-turn, in violation of Vehicle and Traffic Law § 1163 (a), and collided with plaintiff’s car within seconds and before plaintiff had any opportunity to avoid the collision (see Estate of Mirjani v DeVito, 135 AD3d 616 , 617-618 [1st Dept 2016]; Williams v Simpson, 36 AD3d 507 , 508 [1st Dept 2007]). Defendant driver’s admission in the police accident report that he had made an illegal U-turn and had collided with plaintiff’s car is admissible, since defendants also relied upon the report and waived any hearsay or authentication objection (see Matter of Government Empls. Ins. Co. v Boohit, 122 AD3d 525 , 525 [1st Dept 2014]).

Defendant driver’s affidavit, to the extent he claimed that plaintiff struck his car after the turn was complete, was insufficient to defeat plaintiff’s motion as to liability, because defendant does not articulate any way in which plaintiff was at fault.

Concur — Mazzarelli, J.P., Andrias, Saxe, Gische and Kahn, JJ.