| Wilson v Rojas |
| 2009 NY Slip Op 05324 [63 AD3d 1048] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Edward J. Wilson et al., Appellants, v Jaime Alberto Rojaset al., Respondents, et al., Defendants. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Harry Steinberg and Steven B.Prystowsky of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), datedMarch 13, 2008, as granted the motion of the defendants Jaime Alberto Rojas and Jose NarciscoOrellana for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendants Jaime Alberto Rojas and Jose Narcisco Orellana for summary judgmentdismissing the complaint insofar as asserted against them is denied.
The plaintiff Edward Wilson (hereinafter the plaintiff) was driving his vehicle on the LongIsland Expressway when it collided with a tractor-trailer which was operated by the defendantJose Narcisco Orellana and partially owned by the defendant Jaime Alberto Rojas (hereinaftertogether the defendants). The plaintiff and his wife, derivatively, commenced this action against,among others, the defendants. The defendants moved for summary judgment dismissing thecomplaint insofar as asserted against them, contending that the plaintiff's negligent operation ofhis vehicle was the sole proximate cause of the accident. In support of the motion, the defendantssubmitted, inter alia, the deposition testimony of Orellana and the plaintiff. Orellana alleged thatat the time of the accident, the tractor-trailer was entirely within the shoulder of the highwaywith its emergency lights activated as he looked for a map. The plaintiff alleged that thetractor-trailer protruded onto his moving lane by about two feet and that none of its lights wereon. Orellana acknowledged that stretch of the Expressway was dark. The Supreme Court grantedthe motion. We reverse.
Viewing the evidence in the light most favorable to the plaintiffs (see Lichtenstein vCongregation Bais Yisroel, 41 AD3d 437 [2007]), a triable issue of fact exists as to whetherthe placement of the defendants' tractor-trailer contributed to the accident (see Vehicleand Traffic Law § 1202 [a]; 49 CFR 392.22 [b] [1]; Smalls v AJI Indus., Inc., 10NY3d 733, 735 [2008]; White v Diaz, 49 AD3d 134, 139-140 [2008]; DeBartolo vCoccia, 276 AD2d 663 [2000]; Sullivan v Locastro, 178 AD2d 523, 525-526 [1991];Dowling v Consolidated Carriers Corp., 103 AD2d 675 [1984], affd 65 NY2d799 [1985]). Since the defendants failed to establish, prima facie, their entitlement to judgmentas a matter of law, we need not review the sufficiency [*2]of theplaintiffs' opposition papers and the motion should have been denied (see Smalls v AJIIndus., Inc., 10 NY3d at 735; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851[1985]). Mastro, J.P., Skelos, Dickerson and Lott, JJ., concur.