| Marsicano v Fabrizio |
| 2009 NY Slip Op 03487 [61 AD3d 941] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Thomas P. Marsicano, Respondent, v Felix F. Fabrizio,Appellant, and Domenick DePergola, Respondent. |
—[*1] Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & De Cicco, New York,N.Y. [Brian J. Isaac and Michael H. Zhu], of counsel), for plaintiff-respondent. Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling and Ken Gorman of counsel),for defendant-respondent.
In an action to recover damages for personal injuries, the defendant Felix F. Fabrizio appealsfrom an order of the Supreme Court, Richmond County (McMahon, J.), dated March 31, 2008,which denied his motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against him.
Ordered that the order is affirmed, with one bill of costs.
The instant action arose out of a three-car accident which occurred on the morning of April4, 2005, on the westbound roadway of the lower level of the Verrazano-Narrows Bridge. Avehicle driven by the defendant Felix F. Fabrizio lost power and came to a stop in the far leftlane. Shortly after Fabrizio's car stopped, it was struck from behind by a vehicle operated by thedefendant Domenick DePergola. The plaintiff alleges that, thereafter, DePergola's vehicle"bounced up and back and" struck his vehicle, propelling it "into the middle lane." The plaintiffcommenced this action. Fabrizio moved for summary judgment dismissing the complaint and allcross claims insofar as asserted against him on the ground that the collision was not proximatelycaused by any negligence on his part. The Supreme Court denied the motion. We affirm.[*2]
"Except when necessary to avoid conflict with othertraffic, or when in compliance with law or the directions of a police officer or officialtraffic-control device, no person shall . . . [s]top, stand or park a vehicle. . . [o]n a state expressway highway or state interstate route highway, including theentrances thereto and exits therefrom, which are a part thereof, except in an emergency" (Vehicleand Traffic Law § 1202 [a] [1] [j]). On this record, Fabrizio failed to establish, primafacie, that the reason for his vehicle's loss of power was lawful, and was not merely the result ofa foreseeable problem of his own making, such as running out of fuel (see Gregson v Terry, 35 AD3d358, 361 [2006]). Moreover, Fabrizio also failed to make a prima facie showing that heexercised reasonable care in warning other drivers of the hazard posed by his stalled vehicle(see Axelrod v Krupinski, 302 NY 367, 369 [1951]; Gregson v Terry, 35 AD3dat 361). Accordingly, the Supreme Court properly denied Fabrizio's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against him (seeGregson v Terry, 35 AD3d at 361), without the necessity of considering the sufficiency ofthe other parties' opposition papers. Santucci, J.P., Florio, Covello and Dickerson, JJ., concur.