| Boockvor v Fischer |
| 2008 NY Slip Op 08438 [56 AD3d 405] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Steven Boockvor et al., Respondents, v Theresa Fischer etal., Appellants. |
—[*1] Oxman, Tulis, Kirkpatrick, Whyatt & Geiger, LLP, White Plains, N.Y. (Marc S. Oxman ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Westchester County (Liebowitz, J.), entered April 9, 2008, whichdenied their motion for summary judgment dismissing the complaint and, upon searching therecord pursuant to CPLR 3212 (b), awarded summary judgment to the plaintiffs on the issue ofliability.
Ordered that the order is modified, on the law, by deleting the provision thereof which, uponsearching the record pursuant to CPLR 3212 (b), awarded summary judgment to the plaintiffs onthe issue of liability; as so modified, the order is affirmed, without costs or disbursements.
Contrary to the defendants' contention, the Supreme Court properly denied their motion forsummary judgment dismissing the complaint. The plaintiffs rebutted the prima facie showing ofnegligence arising from the rear-end collision by raising triable issues of fact as to whether theaccident was caused by the possible negligence of the defendant Theresa Fischer in stopping hervehicle in the roadway (see Klopchin vMasri, 45 AD3d 737 [2007]; Insinga v F.C. Gen. Contr., 33 AD3d 963 [2006]; Carhuayano v J&R Hacking, 28 AD3d413, 414 [2006]; Chepel v Meyers, 306 AD2d 235, 236 [2003]).
However, the Supreme Court erred in searching the record and awarding summary judgmentto the plaintiffs on the issue of liability. The conflicting accounts of the parties as to the roadconditions and the manner in which the accident occurred raised triable issues of fact regarding[*2]whether under the prevailing conditions the plaintiff StevenBoockvor maintained a safe distance from the defendants' vehicle and traveled at a reasonablysafe speed (see Insinga v F.C. Gen.Contr., 33 AD3d 963 [2006]; Faul v Reilly, 29 AD3d 626 [2006]; Chepel v Meyers, 306AD2d 235 [2003]; Krakowska v Niksa, 298 AD2d 561 [2002]; Young v City of NewYork, 113 AD2d 833 [1985]).
Finally, we note that the plaintiffs improperly submitted, and the Supreme Court erroneouslyconsidered, additional evidence in an unauthorized surreply to the motion (see CPLR2214; Flores v Stankiewicz, 35AD3d 804, 805 [2006]). Mastro, J.P., Rivera, Covello and Leventhal, JJ., concur.