[*1]
Ban v Quesada
2012 NY Slip Op 51516(U) [36 Misc 3d 1226(A)]
Decided on August 7, 2012
Supreme Court, Queens County
Markey, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through August 21, 2012; it will not be published in the printed Official Reports.


Decided on August 7, 2012
Supreme Court, Queens County


Dae Bum Ban, Plaintiff,

against

Roxanna Quesada and CARLOS PEREZ, Defendants




3655/2011



For the Plaintiff: Fishman McIntyre, P.C., by Rita Renjen, Esq., 44 Wall Street, New York, New York 10005

For Defendant-Movant Carlos Perez: Law Offices of Andrea G. Sawyers, by Mark A. Wilgard, Esq., 3 Huntington Quadrangle, Melville, New York 11747

For Defendant Roxanna Quesada: Richard T. Lau & Associates, by Marcella Gerbasi Crewe, Esq., P.O. Box 9040, Jericho, New York 11753

Charles J. Markey, J.



Defendant Carlos Perez, in this car accident case, moves for summary judgment dismissing the complaint and all cross-claims against him. The plaintiff and co-defendant oppose the motion.

On this motion, the sole circumstance presented by the movants is that Carlos Perez was the owner of a car that was parked when the accident occurred. Without putting in any evidentiary facts, in proper form, the opponents of the motion, to avert summary judgment motion, speculate that Perez's car may have parked unlawfully or double-parked. They argue that any motion for summary judgment should await examinations before trial ("EBTs"). Plaintiff's counsel contends that EBTs may help "all parties to correlate a more definitive theory of liability specifically upon the party's relevant observations, which are not detailed in the police report."

In other cases, summary judgment was not deemed appropriate because a circumstance, demonstrated in evidentiary form, showed that a vehicle, improperly parked, contributed to the happening of the accident. See, e.g., Hopkins v Ambrose, 74 AD3d 1455 [3rd Dept. 2010] [genuine issue of material fact as to whether truck was parked on highway precluded summary [*2]judgment]; Sayed v Aviles, 72 AD3d 1061 [2nd Dept. 2010] [plaintiff's car was double-parked, and there was a dispute as to whether he had turned on his hazard lights]; Dibin v Jam Equip. Corp., 32 Misc 3d 1213(A), 2011 WL 2672614, 2011 NY Slip Op 51276(U) [Sup Ct Queens County 2011] [decision by the undersigned] [pre-EBT summary judgment motion denied since issue of fact existed whether or not the vehicle in the roadway had break or warning lights on].

Defendant Perez says only in his affidavit that his parked vehicle was unoccupied at the time of the accident. He does not discuss whether he was in the vicinity of the accident and whether or not he observed any of the events. He does not specify whether his vehicle was lawfully parked.

Although this is a close case, the best result is to deny the co-defendant's motion so that EBTs may be held. Accordingly defendant Perez's motion is denied.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

August 7, 2012