In Chimbo v. Bolivar, 2016 NY Slip Op 05969 (App. Div. 2nd Dept. Sept. 14, 2016) – an auto accident case arising from a collision between plaintiff’s vehicle and defendant’s garbage truck – the court reversed an order granting summary judgment to defendant.
This decision reminds us of summary judgment is not permissible where there are conflicting versions of the facts:
It is not the court’s function on a motion for summary judgment to assess credibility, or to engage in the weighing of evidence. Issue finding, rather than issue determination, is the court’s proper function on such a motion. Thus, a motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.
Here, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint. In support of their motion, the defendants submitted evidence including transcripts of the deposition testimony of both the plaintiff and the defendant driver. In those transcripts, the parties gave differing accounts of the manner in which the accident occurred, and issues of fact and credibility were presented which could not be resolved on a motion for summary judgment. Given these issues, the defendants failed to establish their prima facie entitlement to judgment as a matter of law. Under these circumstances, the conclusions of the defendants’ expert were insufficient to demonstrate, prima facie, that the plaintiff’s allegedly negligent operation of her vehicle was the sole proximate cause of the collision and that the defendants were entirely free from fault.
Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied their motion, regardless of the sufficiency of the plaintiff’s opposition papers.