| Daley v Pelzer |
| 2012 NY Slip Op 08088 [100 AD3d 949] |
| November 28, 2012 |
| Appellate Division, Second Department |
| Jennifer Daley, Plaintiff, v Michelle D. Pelzer et al.,Defendants/Third-Party Plaintiffs-Respondents. Defamien A. Boko, Third-PartyDefendant-Respondent-Appellant; John Lewis, Third-PartyDefendant-Appellant-Respondent. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for third-partydefendant-respondent-appellant. Mendolia and Stenz, Westbury, N.Y. (Jonathan Ivezaj of counsel), for defendants/third-partyplaintiffs-respondents.
In an action to recover damages for personal injuries, the third-party defendant John Lewisappeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County(Lane, J.), entered November 22, 2011, as denied his cross motion for summary judgmentdismissing the third-party complaint and all cross claims insofar as asserted against him, and thethird-party defendant Defamien A. Boko cross-appeals, as limited by his brief, from so much ofthe same order as denied his motion for summary judgment dismissing the third-party complaintand all cross claims insofar as asserted against him.
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law,with one bill of costs payable by the defendants/third-party plaintiffs, the cross motion of thethird-party defendant John Lewis for summary judgment dismissing the third-party complaintand all cross claims insofar as asserted against him is granted, and the motion of the third-partydefendant Defamien A. Boko for summary judgment dismissing the third-party complaint and allcross claims insofar as asserted against him is granted.
This case stems from an accident involving four motor vehicles. According to the depositiontestimony of the third-party defendant Defamien A. Boko, his vehicle experienced mechanicalfailure and came to a stop in the roadway. About five minutes later, Boko's vehicle allegedly washit in the rear by a vehicle operated by the third-party defendant John Lewis. According toLewis's deposition testimony, he saw the stopped Boko vehicle for the first time when the vehicletraveling in front of him made a sudden lane change. About three minutes after Lewis's vehiclehit the rear of Boko's vehicle, Lewis felt two impacts to the rear of his vehicle, and Boko felt twoadditional impacts to the rear of his vehicle. Each impact caused Lewis's vehicle to move [*2]forward and strike the rear of Boko's vehicle. According to theplaintiff's deposition testimony, she saw the stopped Lewis vehicle behind the stopped Bokovehicle and brought her vehicle to a stop behind the Lewis vehicle without striking it. A fewseconds later, a vehicle owned by the defendant/third-party plaintiff Michelle D. Pelzer andoperated by the defendant/third-party plaintiff Earnest H. Pelzer hit the plaintiff's vehicle, causingit to strike Lewis's vehicle in the rear. Earnest H. Pelzer testified at his deposition that he wasdriving his vehicle directly behind the plaintiff's vehicle when the plaintiff's vehicle switchedlanes, inexplicably returned to his lane of travel, and then slammed on the brakes. He providedequivocal testimony as to whether the plaintiff's vehicle was stopped when he hit it.
The Supreme Court should have granted the separate motions of Boko and Lewis forsummary judgment dismissing the third-party complaint and all cross claims insofar as assertedagainst them. They each established their entitlement to judgment as a matter of law bydemonstrating that any negligence on their part in causing their vehicles to be stopped in theroadway was not a proximate cause of the subsequent collision involving the plaintiff's vehicleand the defendants/third-party plaintiffs' vehicle (see Sheehan v City of New York, 40NY2d 496 [1976]; Cuccio vCiotkosz, 43 AD3d 850 [2007]; Haylett v New York City Tr. Auth., 251 AD2d373 [1998]; Dunlap v City of New York, 186 AD2d 782 [1992]). In opposition, thedefendants/third-party plaintiffs failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]).
The defendants/third-party plaintiffs' contention that Boko violated Vehicle and Traffic Law§ 1202 (a) (1) (j) is not properly before this Court, as it was raised for the first time onappeal (see Kennedy v Arif, 82AD3d 1050 [2011]). Florio, J.P., Leventhal, Austin and Cohen, JJ., concur.