| Castle v Bawuah |
| 2012 NY Slip Op 08679 [101 AD3d 922] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Marion Castle et al., Respondents, v Osei Bawuah,Respondent, and Marie A. Dorsainville et al., Appellants. |
—[*1] Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Barbara J. Apostol ofcounsel), for defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants Marie A.Dorsainville and Jose Dorsainville appeal from an order of the Supreme Court, Queens County(Grays, J.), dated September 12, 2011, which, in effect, granted that branch of the plaintiffs'motion which was for summary judgment on the issue of liability against them and granted thecross motion of the defendant Osei Bawuah for summary judgment dismissing the complaint andall cross claims insofar as asserted against him.
Ordered that the appeal from so much of the order as granted that branch of the cross motionof the defendant Osei Bawuah which was for summary judgment dismissing the complaintinsofar as asserted against him is dismissed, as the appellants are not aggrieved by that portion ofthe order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156 [2010]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, that branch of theplaintiffs' motion which was for summary judgment on the issue of liability against the appellantsis denied, and that branch of the cross motion of the defendant Osei Bawuah which was forsummary judgment dismissing all cross claims insofar as asserted against him is denied; and it isfurther,
Ordered that one bill of costs is awarded to the appellants, payable by the plaintiffs and thedefendant Osei Bawuah.
This action arises from an automobile accident involving three vehicles which were travelingwithin the same lane of traffic. With respect to that branch of the plaintiffs' motion which was forsummary judgment on the issue of liability against the defendants Marie A. Dorsainville and JoseDorsainville (hereinafter together the appellants), the plaintiffs established their prima facieentitlement to judgment as a matter of law by submitting the affidavit of the plaintiff driver,wherein she stated that she was fully stopped at a red light when her vehicle was struck in therear (see Piltser v Donna Lee Mgt.Corp., 29 AD3d 973 [2006]; Bustillo v Matturro, 292 AD2d 554 [2002];Jeremic v Tong, 283 AD2d 461 [2001]). With respect to that branch of the cross motionof the defendant Osei Bawuah which [*2]was for summaryjudgment dismissing all cross claims insofar as asserted against him, Bawuah established hisprima facie entitlement to judgment as a matter of law by demonstrating that he stopped hisvehicle behind the plaintiffs' stopped vehicle, and that he only struck the plaintiffs' vehicle afterhis vehicle was struck by the appellants' vehicle (see Perez v Roberts, 91 AD3d 620, 621 [2012]; Hauser v Adamov, 74 AD3d 1024,1025 [2010]; Franco v Breceus, 70AD3d 767 [2010]).
In opposition to the motion and cross motion, the appellants submitted evidence sufficient toraise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).The appellant driver, Marie A. Dorsainville, averred that the Bawuah vehicle struck the plaintiffs'vehicle in the rear before the appellants' vehicle struck the rear of the Bawuah vehicle. Theappellant driver also averred that, after she struck the Bawuah vehicle, the Bawuah vehicle didnot strike the plaintiffs' vehicle again. The appellants also submitted a copy of the police accidentreport, which stated that, according to Bawuah, the plaintiffs' vehicle stopped short and causedhis vehicle to collide with it. The Supreme Court should have considered the police accidentreport submitted in opposition, since it did not provide the sole basis for the denial of summaryjudgment, and there was an acceptable excuse for the failure to tender the evidence in admissibleform (see Phillips v Kantor & Co., 31 NY2d 307 [1972]; Merriman v Integrated Bldg. Controls,Inc., 84 AD3d 897, 899 [2011]; Moffett v Gerardi, 75 AD3d 496 [2010]; Zuilkowski v SentryIns., 114 AD2d 453, 454 [1985]).
The parties presented conflicting accounts as to how the incident occurred. Accordingly, theSupreme Court should have denied that branch of the plaintiffs' motion which was for summaryjudgment on the issue of liability against the appellants, and should have denied that branch ofBawuah's cross motion which was for summary judgment dismissing all cross claims insofar asasserted against him (seePolanco-Espinal v City of New York, 84 AD3d 914 [2011]; Geschwind vHoffman, 285 AD2d 448 [2001]). Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.