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Mario Franco v. Rolling Frito-Lay Sales

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 21, 2013

MARIO FRANCO,
PLAINTIFF-APPELLANT,
v.
ROLLING FRITO-LAY SALES, LTD., ET AL.,
DEFENDANTS-RESPONDENTS.

Franco v Rolling Frito-Lay Sales, Ltd.

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.

Decided on February 21, 2013

Andrias, J.P., Saxe, DeGrasse, Abdus-Salaam, Feinman, JJ.

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered January 9, 2012, which, in this personal injury action arising from a motor vehicle accident, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The unsigned deposition transcripts submitted by defendants in support of their motion were admissible (see CPLR 3116[a]). Plaintiff's transcript was certified by the reporter and plaintiff does not challenge its accuracy (Sass v TMT Restoration Consultants Ltd., 100 AD3d 443, 443 [1st Dept 2012]). Although the unsigned deposition transcript of defendant Jordain was not certified by a reporter, it "was submitted by the party deponent himself, and therefore, was adopted as accurate by the deponent" (Rodriguez v Ryder Truck, Inc., 91 AD3d 935, 936 [2d Dept 2012]).

Defendants, as the owner and operator of the stopped vehicle that was rear-ended by plaintiff, were entitled to summary judgment dismissing the complaint. Plaintiff failed to provide a nonnegligent explanation for the collision (see Francisco v Schoepfer, 30 AD3d 275, 275-276 [1st Dept 2006]). Plaintiff's assertion that defendants' vehicle had "stopped suddenly" is insufficient to rebut the presumption of his negligence (id. at 276).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 21, 2013

CLERK

20130221

© 1992-2013 VersusLaw Inc.



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