| Franzese v Consolidated Dairies, Inc. |
| 2011 NY Slip Op 03025 [83 AD3d 775] |
| April 12, 2011 |
| Appellate Division, Second Department |
| David Franzese, Appellant, v Consolidated Dairies, Inc., etal., Respondents, et al., Defendant. (And Another Title.) |
—[*1] Charles J. Siegel, New York, N.Y. (Alfred T. Lewyn of counsel), for respondents. Kay & Gray, Westbury, N.Y. (Leigh Ann Panek of counsel), for defendant MichaelParish.
In an action to recover damages for personal injuries, the plaintiff David Franzese appealsfrom so much of an order of the Supreme Court, Richmond County (McMahon, J.), datedDecember 17, 2009, as granted the motion of the defendants Consolidated Dairies, Inc., and JuanIsales 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 Consolidated Dairies, Inc., and Juan Isales for summary judgmentdismissing the complaint insofar as asserted against them is denied.
The subject motor vehicle accident occurred when the vehicle in which the plaintiff wasriding as a passenger attempted to change lanes and collided with a delivery truck driven by thedefendant Juan Isales and owned by the defendant Consolidated Dairies, Inc. (hereinaftertogether the defendants).
The defendants failed to demonstrate their prima facie entitlement to judgment as a matter oflaw (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In support of theirmotion, the defendants submitted, inter alia, the deposition testimony of Darren Steininger, apassenger in the plaintiff's vehicle, and the defendant Isales. Given the conflicting testimony as towhere the defendants' truck came into contact with the plaintiff's vehicle, and the admission ofthe defendant Isales that he was traveling up to 35 miles per hour before the accident occurred,which was five miles per hour over the speed limit (cf. Lynch v Dobler Chevrolet, Inc., 49 AD3d 509 [2008]), it cannotbe said that the defendants were free from negligence as a matter of law (see Kolivas v Kirchoff, 14 AD3d493 [2005]). Accordingly, the Supreme Court should have denied the defendants' motion forsummary judgment dismissing the complaint insofar as asserted against them. Covello, J.P., Hall,Lott and Cohen, JJ., concur.