| Anzel v Pistorino |
| 2013 NY Slip Op 02362 [105 AD3d 784] |
| April 10, 2013 |
| Appellate Division, Second Department |
| Rebecca Anzel, Respondent, v Jaclyn Pistorino etal., Appellants, and Rudolph Allen, Respondent. |
—[*1] Shayne, Dachs, Corker, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs ofcounsel), for plaintiff-respondent. Sobel & Schleier, LLC, Huntington, N.Y. (Cheryl Spinner Kravatz of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, the defendants JaclynPistorino, Joseph Pistorino, and Teresa Pistorino appeal (1) from an order of the SupremeCourt, Queens County (Weiss, J.), dated June 24, 2011, which granted the plaintiff'smotion for summary judgment on the issue of liability against the defendants JaclynPistorino and Joseph Pistorino, and (2), as limited by their brief, from so much an orderof the same court dated September 26, 2011, as granted the motion of the defendantRudolph Allen for summary judgment dismissing the complaint and all cross claimsasserted against him.
Ordered that the appeal by the defendant Teresa Pistorino from the order dated June24, 2011, is dismissed, as she is not aggrieved thereby (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d144 [2010]); and it is further,
Ordered that the order dated June 24, 2011, is affirmed on the appeal by JaclynPistorino and Joseph Pistorino; and it is further,
Ordered that the appeal by the defendants Jaclyn Pistorino, Joseph Pistorino, andTeresa Pistorino from so much of the order dated September 26, 2011, as granted thatbranch of the motion of the defendant Rudolph Allen which was for summary judgmentdismissing the complaint insofar as asserted against him is dismissed, as those defendantsare not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d144 [2010]); and it is further,
Ordered that the order dated September 26, 2011, is reversed insofar as reviewed, onthe law, and that branch of the motion of the defendant Rudolph Allen which was forsummary judgment dismissing all cross claims asserted against him is denied; and it isfurther,[*2]
Ordered that one bill of costs is awarded to theplaintiff, payable by the defendants Jaclyn Pistorino, Joseph Pistorino, and TeresaPistorino, and one bill of costs is awarded to the defendants Jaclyn Pistorino, JosephPistorino, and Teresa Pistorino, payable by the defendant Rudolph Allen.
The plaintiff commenced this action to recover damages for personal injuries shesustained when a car operated by the defendant Jaclyn Pistorino and owned by thedefendant Joseph Pistorino (hereinafter together the Pistorinos), in which the plaintiffwas a passenger, collided with a vehicle owned and operated by the defendant RudolphAllen. The plaintiff moved for summary judgment on the issue of liability against thePistorinos. The Supreme Court granted the motion in an order dated June 24, 2011. In sodoing, the Supreme Court found, inter alia, that as between Jaclyn Pistorino and Allen,Jaclyn Pistorino was the sole proximate cause of the accident. Based solely upon thatfinding, Allen moved for summary judgment dismissing the complaint and all crossclaims insofar as asserted against him. The Supreme Court granted Allen's motion in anorder dated September 26, 2011.
The plaintiff demonstrated her prima facie entitlement to judgment as a matter of lawon the issue of liability against the Pistorinos by establishing that Jaclyn Pistorinoviolated Vehicle and Traffic Law § 1141 when she made a left turn directly intothe path of Allen's oncoming vehicle (see Ahern v Lanaia, 85 AD3d 696 [2011]; see Moreno v Gomez, 58AD3d 611, 612 [2009]; Maloney v Niewender, 27 AD3d 426 [2006]). Inopposition, the Pistorinos failed to raise a triable issue of fact. The right of the plaintiff,as an innocent passenger, to summary judgment is not "restricted by potential issues ofcomparative negligence" which may exist as between the Pistorinos and Allen (Medina v Rodriguez, 92 AD3d850, 850 [2012]; see Silberman v Surrey Cadillac Limousine Serv., 109AD2d 833 [1985]).
Further, contrary to the Pistorinos' contention, the plaintiff's motion for summaryjudgment should not have been denied as premature, because the Pistorinos failed todemonstrate how discovery could lead to relevant evidence or that "facts essential tojustify opposition to the motion were exclusively within the knowledge and control ofthe plaintiff" (Lopez v WSDistrib., Inc., 34 AD3d 759, 760 [2006] [citation omitted]; see CPLR3212 [f]; Brennan vGagliano, 71 AD3d 620, 621 [2010]). The Pistorino's mere hope andspeculation that discovery might reveal some action on the part of the plaintiff thatcontributed to the accident is insufficient to support the denial of the plaintiff's motion(see Cortes v Whelan, 83AD3d 763, 764 [2011]; Hemingway v New York City Health & Hosps. Corp., 13 AD3d484, 485 [2004]).
The Supreme Court erred, however, in granting that branch of Allen's motion whichwas for summary judgment dismissing all cross claims asserted against him. Allen'smotion was based entirely upon the preclusive effect of the finding made by the SupremeCourt in deciding the plaintiff's motion for summary judgment, that, as between JaclynPistorino and Allen, Jaclyn Pistorino was the sole proximate cause of the accident.However, the issue of the relative fault of Jaclyn Pistorino and Allen was not raised bythe plaintiff in her motion. Correspondingly, the plaintiff did not demonstrate that, asbetween Jaclyn Pistorino and Allen, Jaclyn Pistorino was the sole proximate cause of theaccident. Accordingly, the Supreme Court erred in so finding, and in thereafter givingpreclusive effect to that finding by granting that branch of Allen's motion which was forsummary judgment dismissing the cross claims asserted against him. That branch ofAllen's motion should, therefore, have been denied. Skelos, J.P., Leventhal, Hall andLott, JJ., concur.