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Desouki v. Keeler

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


May 26, 2009

YASSER DESOUKI, ETC., APPELLANT,
v.
JOEL P. KEELER, ET AL., RESPONDENTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated April 14, 2008, which granted the defendants' motion for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

A. GAIL PRUDENTI, P.J., HOWARD MILLER, RANDALL T. ENG & ARIEL E. BELEN, JJ.

(Index No. 28772/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff, who was riding his bicycle without operational brakes, proceeded into an intersection and failed to yield the right of way to the defendants' approaching motor vehicle (see Vehicle and Traffic Law § 1231; Trzepacz v Jara, 11 AD3d 531). The conclusory and speculative findings set forth in the affidavit of the plaintiff's expert concerning the possible negligence of the defendant driver in failing to avoid the accident did not raise a triable issue of fact (see Trzepacz v Jara, 11 AD3d at 531). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

PRUDENTI, P.J., MILLER, ENG and BELEN, JJ., concur.

20090526

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