The following papers numbered 1 to 5 were read on this motion:

Defendants United Parcel Service, Inc. and Holowiak (collectively, "UPS") bring their motion seeking to dismiss this action based on documentary evidence. The basis for the motion [*2]is that, according to UPS, merely seconds before the accident, Holowiak, the UPS driver, had pulled his truck over to the side of the road instead of turning immediately into a parking lot, because plaintiff's vehicle was blocking the entrance way. UPS contends that while Holowiak was sitting there waiting, plaintiff pulled out into traffic and was hit by defendant MacDougal, who driving defendant Vassallo's vehicle (collectively, the "remaining defendants"). UPS contends that its driver did the right thing by stopping where he did, even though it was a "No Standing Anytime" zone.

"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident. In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. There can be more than one proximate cause of an accident, and generally, it is for the trier of fact to determine the issue of proximate cause. The issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts." Dowd v. Kharieh Bros., 216 AD3d 739, 740, 188 N.Y.S.3d 182, 183 (2d Dept. 2023). The Court finds that UPS has established its prima facie case.

In response to this showing, however, plaintiff asserts in his affidavit that the facts are not as UPS depicts. Plaintiff contends that Macdougal "crossed into the eastbound shoulder, and struck the left rear end and the left side of the [UPS truck]. Thereafter, [Macdougal] crashed into the rear left (driver's side) portion of my Dodge, which was stationary at that time." Plaintiff argues that if the UPS truck had not been parked where it was, blocking his view, he would have seen Macdougal coming, and could have taken evasive action. Plaintiff also contests UPS' assertion that the driveway was too narrow for the truck to enter while plaintiff was exiting. He further contends that UPS had already made its delivery that morning, and may not actually have been waiting to turn in to the parking lot. The Court notes that the remaining defendants only submit to the Court an attorney affirmation, which has no evidentiary value. Warrington v. Ryder Truck Rental, Inc., 35 AD3d 455, 456, 826 N.Y.S.2d 152, 153 (2d Dept. 2006) ("An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance.").

The Court finds that plaintiff has raised sufficient questions of fact as to how the accident occurred that the Court must deny this motion as premature. Should the facts become more clear after discovery has been concluded, a proper motion for summary judgment may be appropriate.

The foregoing constitutes the decision and order of the Court.