| Brennan v Gagliano |
| 2010 NY Slip Op 01753 [71 AD3d 620] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Robert F. Brennan et al., Plaintiffs, v Renate Gagliano etal., Defendants. (Action No. 1.) Robert F. Brennan et al., Respondents, v Town of Islip et al.,Respondents, and County of Suffolk, Appellant. (Action No. 2.) |
—[*1] Michael Joseph Corcoran, Islandia, N.Y., for plaintiffs-respondents.
In related actions to recover damages for personal injuries, etc., the County of Suffolk, adefendant in action No. 2, appeals, as limited by its brief, from so much of an order of theSupreme County, Suffolk County (Farneti, J.), dated April 30, 2008, as denied its motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it inaction No. 2.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the motion of the County of Suffolk for summary judgment dismissing the complaint and allcross claims insofar as asserted against it in action No. 2 is granted.
The plaintiff Robert F. Brennan (hereinafter the plaintiff) allegedly sustained variouspersonal injuries, when a motor vehicle operated by the defendant Renate Gagliano struck thebicycle he was riding, as both vehicles were traveling through the parking lot of the Oakdalestation of the Long Island Rail Road. It is undisputed that, immediately prior to the occurrence ofthe accident, Gagliano observed a parked bus in front of her, in the parking lot.
The plaintiff and his wife, suing derivatively, subsequently commenced the present actionsagainst Gagliano and the defendant Town of Islip and County of Suffolk alleging, inter alia, thatthe County's negligence was a proximate cause of the accident. More specifically, the plaintiffsclaimed that the subject bus was owned by the County, and that its employee had parked the busin such a way that it obstructed the view of both the plaintiff and Gagliano, thus contributing tothe occurrence of the accident. However, assuming that the County did, in fact, own the bus, andthat the bus had been parked there improperly or illegally, the evidence submitted by the Countyestablished its prima facie entitlement to judgment as a matter of law by demonstrating that thebus [*2]did not obstruct the view of either party and was not aproximate cause of the accident (seeMiller v Keegan, 67 AD3d 754 [2009]). Indeed, at her deposition, Gagliano expresslydenied that anything obstructed her view as she looked through her front windshield immediatelyprior to the occurrence. Nor was there anything in the plaintiff's deposition testimony whichindicated that the bus obstructed his view of Gagliano's automobile. Gagliano further testifiedthat, immediately prior to the occurrence, the front of her vehicle was two to three car lengthsfrom the rear of the bus. An eyewitness to the accident estimated that the distance between thetwo vehicles was three to five car lengths.
The plaintiffs' opposition papers failed to raise a triable issue of fact (see CPLR 3212[b]). Notably, the opinions of the plaintiffs' engineering expert were rendered speculative by thelack of evidence in the record as to the exact locations of the stopped bus, the moving bicycle,and the motor vehicle operated by Gagliano immediately prior to the occurrence (see Jules v Calderon, 62 AD3d958 [2009]; Sapienza vRuggiero, 57 AD3d 643, 644 [2008]; Leslie v Splish Splash at Adventureland, 1 AD3d 320 [2003]).Furthermore, contrary to the plaintiffs' contention, the motion was not premature, as the plaintiffsfailed to offer an evidentiary basis to suggest that discovery may lead to relevant evidence or thatfacts essential to oppose the motion were exclusively within the knowledge and control of theCounty (see CPLR 3212 [f]; Kimyagarov v Nixon Taxi Corp., 45 AD3d 736, 737 [2007]; Lopez v WS Distrib., Inc., 34 AD3d759 [2006]).
Accordingly, the Supreme Court should have granted the County's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it in actionNo. 2. Skelos, J.P., Angiolillo, Balkin and Lott, JJ., concur.