| Ianello v O'Connor |
| 2009 NY Slip Op 00345 [58 AD3d 684] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Valerie Ianello et al., Respondents, v Thomas J. O'Connoret al., Appellants, and Matthew J. Caruso et al., Respondents, et al., Defendants. (And a ThirdParty Action.) |
—[*1] Henderson & Brennan, White Plains, N.Y. (John T. Brennan of counsel), forplaintiffs-respondents. Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht ofcounsel), for defendants-respondents.
In an action to recover damages for personal injuries, etc., the defendants Thomas J.O'Connor and Bloomberg LP appeal from so much of an order of the Supreme Court,Westchester County (Donovan, J.), entered November 1, 2007, as denied, as untimely, theirmotion for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them.
Ordered that the order is reversed insofar as appealed from, on the law and in the exercise ofdiscretion, with one bill of costs, and the appellants' motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against them is granted.
Valerie Ianello (hereinafter the plaintiff) alleges that she was injured when the car in whichshe was a passenger was involved in a multi-vehicle accident. She was traveling in a car drivenby the defendant Matthew Caruso, which was the third vehicle in this four-vehicle accident. Thedriver of the second car, the defendant Mary Jacques, brought her car to a complete stop behindthe lead vehicle, driven by the defendant Thomas J. O'Connor, and owned by the defendantBloomberg LP (hereinafter together the appellants) before Caruso's vehicle rear-ended her.Thereafter, Caruso's car was hit by the fourth vehicle, a truck driven by the defendant PabloSandoval. That collision [*2]caused the Caruso vehicle to pushJacques' car into O'Connor's car, and Caruso's car was pushed underneath Jacques' car.
Jacques timely moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against her. The appellants served a notice of motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them four days past the60-day deadline set by the court, and subsequently served an amended notice of cross motion forthe same relief three days later. Both moving parties argued that, since Jacques' vehicle hadcome to a full stop before being hit by Caruso's vehicle, neither Jacques' vehicle nor O'Connor'sactions were the proximate cause of the plaintiff's injuries. The Supreme Court granted Jacques'motion, but denied the appellants' motion as untimely.
Upon a showing of good cause, the Supreme Court is authorized to extend a court-ordereddeadline for making a summary judgment motion (see CPLR 2004). Here, since thegrounds for summary judgment advanced by the appellants were nearly identical to thoseadvanced in Jacques' pending summary judgment motion, the requisite good cause for thebelated motion was established (see CPLR 2004; Joyner-Pack v Sykes, 54 AD3d 727 [2008]; Kwang Ho Kim vD & W Shin Realty Corp., 47 AD3d 616, 618 [2008]; Grande v Peteroy, 39 AD3d 590, 591 [2007]). Accordingly, underthe circumstances of this case, it was an improvident exercise of discretion to refuse to considerthe appellants' motion for summary judgment on the merits (see CPLR 2004; Joyner-Pack v Sykes, 54 AD3d727 [2008]).
The appellants established their prima facie entitlement to judgment as a matter of law basedon evidence that Jacques' vehicle was able to come to a gradual and complete stop several feetbehind their vehicle before her vehicle was struck by Caruso's vehicle. Jacques testified that allof the traffic in front of her, including O'Connor's car, was stopped and she had been stopped forfive seconds before her vehicle was struck in the rear. Therefore, O'Connor's actions were not aproximate cause of the collisions which allegedly caused the plaintiff's injuries (see Hyeon Hee Park v Hi Taek Kim,37 AD3d 416 [2007]; Calabrese v Kennedy, 28 AD3d 505 [2006]; cf. Tutrani v County of Suffolk, 10NY3d 906 [2008]). In opposition, the plaintiffs failed to offer evidence sufficient to raise atriable issue of fact. Consequently, the appellants' motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them should have been granted. Skelos,J.P., Ritter, Carni and Dickerson, JJ., concur.