It is equally well-settled by the Court of Appeals that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v Prospect Hosp., 68 NY2d 320, 324 see also Winegrad v New York Univ.
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the very question of negligence is itself a question for jury determination." (Ugarriza v Schmieder, 46 NY2d 471, 474. ) Furthermore, the Court of Appeals has stated that "eglience cases by their very nature do not usually lend themselves to summary judgment, since often. ) "n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination." (Swartout v Consolidated Rail Corp., 294 AD2d 785, 786 see also Oritz v Varsity Holdings, LLC, 18 NY3d 335, 339 Greco v Boyce, 262 AD2d 734, 734. It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. 3116 (a) and 2) Holly Walsh-Plew's affidavit should be disregarded as she is not listed as a witness in Plaintiff's Response to Omnibus Discovery Demands and her affidavit is "self-serving, conclusory, and incredible."
![bill of particulars conflicting with deposition testimony bill of particulars conflicting with deposition testimony](https://i.ytimg.com/vi/FOCe9tbo_QI/hqdefault.jpg)
Defendants object to the production of both documents arguing 1) the changes to the deposition transcript were never served on them within sixty (60) days pursuant to CPLR R. Also included is the affidavit of Holly Walsh-Plew, Plaintiff's wife. Plaintiff's opposition also attached an altered deposition transcript changing many of Plaintiff's deposition answers to more favorable ones. Plaintiff further argues that Defendants' motion lacks merit because it relies on the confused testimony of Plaintiff, who has allegedly sustained a traumatic brain injury affecting his memory which affords him leniency under the Noseworthy doctrine. Plaintiff opposes the motion, arguing that Defendants' motion is premature as disclosure has not been completed. Defendants also move for summary judgment arguing Plaintiff has not sustained a "serious injury" per his own admissions at his deposition. 3212 arguing that Plaintiff has failed to make out his prima facie case of negligence against Defendants.
![bill of particulars conflicting with deposition testimony bill of particulars conflicting with deposition testimony](https://images.sampleforms.com/wp-content/uploads/2017/06/Basic-Notice-of-Deposition-Form.jpg)
Rather than continue with disclosure, Defendants move for summary judgment pursuant to CPLR R. None of the Defendants nor any other witnesses have been deposed. Plaintiff is still undergoing medical treatment and assessment, including an evaluation which was allegedly to be conducted on March 25, 2015-notably after the date the motion was made. Some paper disclosure has been exchanged and the depositions of Plaintiff and the responding State Trooper have been completed. This is a motor vehicle accident case wherein Plaintiff was allegedly injured when Defendants' tandem tractor trailer truck collided with Plaintiff's vehicle as he was attempting to merge onto a highway. John Allen Snyder, Ryder Truck Rental, Inc., and Ginsberg's Institutional Foods, Inc., Defendants.
![bill of particulars conflicting with deposition testimony bill of particulars conflicting with deposition testimony](https://nroselaw.com/wp-content/uploads/2016/04/file1821302474220.jpg)
This opinion is uncorrected and will not be published in the printed Official Reports. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.