| Knizeski v Settembres Limousine, Inc. |
| 2008 NY Slip Op 07216 [54 AD3d 1005] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Richard Knizeski et al., Respondents, v SettembresLimousine, Inc., et al., Appellants, and Deborah Bohren et al.,Respondents. |
—[*1] Gucciardo Law Firm (Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. [JonathanA. Dachs], of counsel), for plaintiffs-respondents. Kay & Gray, Westbury, N.Y. (Theresa P. Mariano and James Duggan of counsel), fordefendants-respondents Deborah Bohren and Jonathan R. Bohren.
In an action to recover damages for personal injuries, etc., the defendants SettembresLimousine, Inc., and John M. Bell appeal from an order of the Supreme Court, Richmond County(Maltese, J.), dated November 15, 2007, which granted the plaintiffs' motion and the separatemotion of the defendants Deborah Bohren and Jonathan R. Bohren for reargument of their priorcross motion for summary judgment dismissing the complaint and cross claims insofar asasserted against them, which had been granted in an order of the same court dated June 5, 2007,and upon reargument, in effect, denied their prior cross motion for summary judgment.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe plaintiffs-respondents and the defendants-respondents appearing separately and filingseparate briefs.
On October 2, 2004, the plaintiff Richard Knizeski and his daughter, the plaintiff MichelleKnizeski-Fulop (hereinafter together the plaintiffs) were injured in a motor vehicle accidentwhile riding in a limousine en route to Michelle's wedding. The limousine was owned by thedefendant Settembres Limousine, Inc., and operated by the defendant John M. Bell (hereinaftertogether the appellants).[*2]
At the intersection of Route 9 and Harwood Avenue inWestchester County, the limousine collided with a vehicle owned by the defendant DeborahBohren and operated by her son, the defendant Jonathan Bohren (hereinafter together theBohrens), which entered the intersection from a side street controlled by a stop sign. Thelimousine was spun into the opposing traffic lane, where it collided with a northbound vehicleowned by the defendant Fanny Quezada and operated by her son, the defendant Christopher A.Araujo.
The plaintiffs commenced this action to recover damages for negligence against theappellants, the Bohrens, and Quezada and Araujo. Quezada and Araujo moved for summaryjudgment dismissing the complaint insofar as asserted against them and the appellants similarlycross-moved for summary judgment dismissing the complaint and cross claims insofar asasserted against them.
The Supreme Court granted the motion of Quezada and Araujo and the appellants' crossmotion. With respect to the appellants' cross motion, the court found that Bohren entered theintersection without yielding the right of way and that the opposing parties failed to demonstratethat Bell was driving in excess of the speed limit or that he failed to use reasonable care to avoidthe accident.
The plaintiffs and the Bohrens separately moved for leave to reargue the appellants' crossmotion on the ground that the court overlooked or misapprehended portions of Bell's depositiontestimony. The court granted the motions, and upon reargument, in effect, denied the appellants'cross motion for summary judgment.
The Supreme Court providently exercised its discretion in granting reargument (see Leistv Goldstein, 305 AD2d 468, 469 [2003]; Connolly v Toys-R-Us, 250 AD2d 721[1998]). Moreover, the plaintiffs and the Bohrens established on reargument that the courtoverlooked triable issues of fact which existed with respect to Bell's rate of speed and/or hisfailure to use reasonable care to avoid a collision. Accordingly, upon reargument, the SupremeCourt properly, in effect, denied the appellants' cross motion for summary judgment (cf. Rotondi v Rao, 49 AD3d 520[2008]; Mateiasevici v Daccordo,34 AD3d 651, 652 [2006]; Campbell-Lopez v Cruz, 31 AD3d 475 [2006]; Cox v Nunez, 23 AD3d 427, 427[2005]; Romano v 202 Corp., 305 AD2d 576, 577 [2003]). Lifson, J.P., Florio, Eng andBelen, JJ., concur. [See 2007 NY Slip Op 33843(U).]