| Prosen v Mabella |
| 2013 NY Slip Op 04589 [107 AD3d 870] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Kevin Prosen, Respondent, v V. Mabella,Appellant, and Julia M. Paulino et al., Respondents. |
—[*1] Klein Calderoni & Santucci, LLP, Bronx, N.Y. (Fred T. Santucci, Jr., of counsel),for plaintiff-respondent. Mendolia & Stenz (Montfort, Healy, McGuire & Salley, Garden City, N.Y. [MichaelAdams and Donald S. Neumann, Jr.], of counsel), for defendants-respondents Julia M.Paulino and Fernando Maldonado.
In an action to recover damages for personal injuries, the defendant V. Mabellaappeals from an order of the Supreme Court, Queens County (Gavrin, J.), enteredOctober 17, 2011, which denied his motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against him.
Ordered that the order is reversed, on the law, with one bill of costs payable by theplaintiff-respondent and the defendants-respondents, and the motion of the defendant V.Mabella for summary judgment dismissing the complaint and all cross claims insofar asasserted against him is granted.
The plaintiff was a passenger in a vehicle operated by the defendant Abdul Hossainand owned by the defendant Muhammed Munim (hereinafter the Hossain vehicle) whichcollided with the rear of a vehicle operated by the defendant Fernando Maldonado andowned by the defendant Julia M. Paulino (hereinafter the Maldonado vehicle) in the rightsouthbound lane of the West Side Highway. As a result of the rear-end impact, theMaldonado vehicle was propelled forward, and it struck the rear of a vehicle owned bythe defendant V. Mabella (hereinafter the Mabella vehicle), which was stalled in the rightlane. At the location where the accident took place, the southbound West Side Highwayconsists of three lanes, with no breakdown lane.
At his deposition, Mabella testified that he was driving southbound in the right laneof the highway when he "hear[d] [a] noise [from the engine] and then [the] car juststopped." [*2]Mabella had not previously experiencedany mechanical problems with his vehicle, and had just taken it for a routine tune-up theweek before the accident. He had been stopped in the right lane for approximately 45minutes, waiting for help to arrive, when the accident occurred.
Maldonado's deposition testimony indicates that he was also driving in the right lanewhen he first saw the Mabella vehicle in a stopped position, approximately 10 car lengthsahead of his vehicle. In response, Maldonado began to slow down, activated his left turnsignal, and prepared to switch lanes. Maldonado further testified that he was completelystopped, two car lengths behind the Mabella vehicle, intending to make a lane change,when his vehicle was struck in the rear.
Hossain testified at his deposition that the vehicle traveling in front of him in themiddle lane of the highway was moving slowly, so he decided to move into the rightlane. When he changed lanes, he saw that the Maldonado vehicle was moving slowlywith its left turn signal activated. Hossain applied the brakes, but he was not able to stopin time to avoid striking the rear of the Maldonado vehicle. Hossain testified that he didnot see the stalled Mabella vehicle until after the accident had taken place. According tothe deposition testimony of the plaintiff, the Hossain vehicle was traveling atapproximately 55 to 60 miles per hour immediately prior to the impact.
The plaintiff commenced this personal injury action against Mabella, among others,and Mabella moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against him. The Supreme Court denied Mabella's motion, andMabella appeals.
Mabella established his prima facie entitlement to judgment as a matter of lawthrough his submission of the deposition testimony of the parties, which demonstratesthat his vehicle was fully stopped when it was struck in the rear by the Maldonadovehicle (see Tutrani v County ofSuffolk, 10 NY3d 906, 908 [2008]; Blasso v Parente, 79 AD3d 923 [2010]; Ianello v O'Connor, 58 AD3d684 [2009]). Although his vehicle was stopped in a moving lane of traffic, Mabellaestablished that this was due to mechanical failure and not the result of any fault on hispart (see Blasso v Parente, 79 AD3d at 925; cf. Gonzalez v Ceesay, 98 AD3d 1078 [2012]; Gregson v Terry, 35 AD3d358 [2006]). The plaintiff and the defendants who opposed Mabella's motion failedto raise a triable issue of fact regarding Mabella's alleged fault in the happening of theaccident.
Accordingly, the Supreme Court should have granted Mabella's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against him(see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Eng, P.J.,Rivera, Hall and Sgroi, JJ., concur.