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Diego v Galusha 2010 NY Slip Op 31193(U) May 18, 2010 Supreme Court, Albany County Docket Number: 6906-08 Judge: Joseph C. Teresi Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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STATE OF NEW YORK SUPREME COURT EDUARDO A. DIEGO, As Administrator of the Estate of TOMAS ANDRES AGUIRRE, Deceased, Plaintiffs, -againstCHARLES GALUSHA and JAMIE GALUSHA,

COUNTY OF ALBANY

DECISION and ORDER INDEX NO. 6906-08 RJI NO. 01-08-95342

Defendants. Supreme Court Albany County All Purpose Term, April 30, 2010 Assigned to Justice Joseph C. Teresi APPEARANCES: Finkelstein & Partners, LLP Kristine Cahill, Esq. Attorneys for Plaintiffs 1279 Route 300 PO Box 1111 Newburgh, New York 12551 Boeggeman, George & Corde, PC Thomas Sica, Esq. Attorneys for Defendants 39 North Pearl Street, Suite 501 Albany, New York 12207 TERESI, J.: On September 8, 2006, just after 8:30 pm, Thomas Andres Aguirre (hereinafter "Mr. Aguirre") was struck and killed by a vehicle driven by Charles Galusha and owned by Jamie Galusha.l The Administrator of Mr. Aguirre's Estate commenced this action against Defendants, seeking damages due to Mr. Aguirre's wrongful death. Issue was joined by Defendants, the

I Charles Galusha and Jamie Galusha are hereinafter collectively referred to as "Defendants"; and the date and time of this incident will be referred to as "time of the accident."

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parties have engaged in and completed discovery, a Note ofIssue has been filed and a trial date certain has been set. Defendants now move for summary judgment dismissing Plaintiffs' complaint, claiming Mr. Galusha's actions were not negligent and Mr. Aguirre's negligence was the sole proximate cause of his death. Plaintiffs oppose the motion. Because Defendants failed to demonstrate their entitlement to judgment as a matter of law, their motion is denied. "Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." Napierski v. Finn, 229 AD2d 869, 870 (3rdDept. 1996). It is well established that the proponent of a summary judgment motion bears the "threshold burden of tendering evidentiary proof in admissible form establishing entitlement to judgment as a matter oflaw." (Chiarini ex reI. Chiarini v. County of Ulster, 9 AD3d 769 [3d Dept. 2004], Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; CPLR

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