| Leung v Bolton |
| 2012 NY Slip Op 03414 [95 AD3d 836] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Rose Leung, Respondent, v Michael Bolton, Appellant, andSandra A. Vitthuhn et al., Respondents, et al., Defendants. |
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In an action to recover damages for personal injuries, the defendant Michael Bolton appeals,as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bayne,J.), dated November 19, 2010, as denied his cross motion, in effect, for summary judgmentdismissing the complaint and all cross claims insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
On June 27, 2009, the plaintiff allegedly was injured in a chain-reaction collision involvingfive motor vehicles on the Belt Parkway in Queens County. The plaintiff was a passenger in avehicle which was owned and operated by the defendant Michael Bolton. She commenced thisaction against the owners or operators of all of the vehicles. Bolton cross-moved, in effect, forsummary judgment dismissing the complaint and all cross claims insofar as asserted against him.In the order appealed from, the Supreme Court, inter alia, denied his cross motion.
Bolton failed to establish his prima facie entitlement to judgment as a matter of law, becausethe evidence he submitted in support of his cross motion demonstrated the existence of a triableissue of fact as to whether he was negligent in the operation of his vehicle (see Magloire v Sitner, 91 AD3d919, 919-920 [2012]). Under the circumstances of this case, the conflicting depositiontestimony submitted in support of the cross motion demonstrated the existence of a triable issueof fact as to whether, before the collision, Bolton failed to leave a reasonably safe distancebetween his vehicle and the vehicle in front of him (see Napolitano v Galletta, 85 AD3d 881, 882 [2011]; Malak v Wynder, 56 AD3d 622,623-624 [2008]). Accordingly, Bolton's cross motion was properly denied, without regard to thesufficiency of the papers submitted in opposition (see Magloire v Sitner, 91 AD3d at919-920; Checo v 452-53rd St. RealtyCorp., 78 AD3d 880, 881 [2010]; Sarafolean v Accomplice N.Y., 74 AD3d 1310, 1311 [2010]).Mastro, A.P.J., Balkin, Sgroi and Cohen, JJ., concur.