| Shuman v Maller |
| 2007 NY Slip Op 08437 [45 AD3d 566] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Laura Shuman, Respondent, v Karen Maller et al.,Appellants, and William Coats, Respondent. (And a Third-Party Action.) (Action No. 1.)William Coats, Respondent, v Mercedes-Benz Credit Corporation et al., Appellants. (Action No.2.) |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg and StevenPrystowsky of counsel), for appellant Mercedes-Benz Credit Corporation in both actions. Sandback, Birnbaum & Michelen, Mineola, N.Y. (Oscar Michelen of counsel), for LauraShuman, plaintiff-respondent in Action No. 1. Hammill, O'Brien, Croutier, Dempsey & Pender, P.C., Syosset, N.Y. (Anton Piotroski andMaureen Quinn of counsel), for William Coats, defendant-respondent in Action No. 1 andrespondent in Action No. 2.
In related actions, inter alia, to recover damages for personal injuries, which were joined fortrial, Karen Maller and Paul Maller, defendants in both actions, appeal, as limited by their brief,from so much of an order of the Supreme Court, Suffolk County (Blydenburgh, J.), dated June21, 2006, as granted those branches of the motions of William Coats, a defendant in action No. 1and the plaintiff in action No. 2, which were for summary judgment dismissing the complaint andthe cross claims insofar as asserted by them against him in action No. 1 and for summaryjudgment on the issue of liability against them in action No. 2, and granted that branch of thecross motion of Laura Shuman, the plaintiff in action No. 1, which was for summary judgmenton the issue of [*2]liability against them in action No. 1, andMercedes-Benz Credit Corporation, a defendant in both actions, separately appeals from so muchof the same order as granted those branches of the motions of William Coats which were forsummary judgment dismissing the complaint and the cross claims insofar as asserted by it againsthim in action No. 1 and for summary judgment on the issue of liability against it in action No. 2,and granted that branch of the cross motion of Laura Shuman which was for summary judgmenton the issue of liability against it in action No. 1.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately and filing separate briefs.
These related personal injury actions arise from an accident involving a motorcycle driven byWilliam Coats, a defendant in action No. 1 and the plaintiff in action No. 2, and aMercedes-Benz motor vehicle driven by the defendant Karen Maller and leased to the defendantPaul Maller by the defendant Mercedes-Benz Credit Corporation (hereinafter collectively theappellants). Laura Shuman, the plaintiff in action No. 1, was a passenger on Coats' motorcycle atthe time of the accident. Coats moved for summary judgment dismissing the complaint and allcross claims insofar as asserted against him in action No. 1 and he separately moved for summaryjudgment on the issue of liability in action No. 2. Shuman cross-moved, inter alia, for summaryjudgment on the issue of liability against the appellants in action No. 1. In the order appealedfrom, the Supreme Court, inter alia, granted the motions and cross motion. We affirm insofar asappealed from.
In support of his motions for summary judgment, Coats established, prima facie, that he waslawfully proceeding southbound on the Robert Moses Causeway at the time of the accident. BothCoats and Shuman further established, prima facie, that the defendant Karen Maller enteredCoats' traffic lane with her vehicle, without yielding the right of way, and hit his motorcycle (see Bongiovi v Hoffman, 18 AD3d686, 687 [2005]; Moreback vMesquita, 17 AD3d 420, 421 [2005]; cf. Jacino v Sugerman, 10 AD3d 593, 595 [2004]). The evidencesubmitted in opposition failed to raise a triable question of fact as to the comparative negligenceof Coats (see McCain v Larosa, 41AD3d 792 [2007]; Bongiovi v Hoffman, 18 AD3d at 686). Accordingly, theSupreme Court properly granted Coats' motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against him in action No. 1, properly granted Coats'separate motion for summary judgment on the issue of liability in action No. 2, and properlygranted those branches of Shuman's cross motion which were for summary judgment on the issueof liability against the appellants in action No. 1. Rivera, J.P., Skelos, Fisher and Angiolillo, JJ.,concur.