| Mahieddine-Benziane v O'Connor |
| 2016 NY Slip Op 05123 [140 AD3d 1125] |
| June 29, 2016 |
| Appellate Division, Second Department |
[*1]
| Azeddine Mahieddine-Benziane et al.,Respondents, v Patrick J. O'Connor et al., Defendants, and Rafael A. Figueroa etal., Appellants. |
Baker, McEvoy, Morissey & Moskovits, P.C., Brooklyn, NY (Robert D. Graceof counsel), for appellants.
Meyerson & Levine, LLP, Franklin Square, NY (Michael C. Levine and MaryEllen O'Brien of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants Rafael A.Figueroa and I&R Private Service appeal, as limited by their brief, from so much ofan order of the Supreme Court, Kings County (Lewis, J.), dated January 9, 2015, asgranted that branch of the plaintiffs' motion which was for summary judgment on theissue of liability insofar as asserted against them and denied that branch of their crossmotion which was for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the plaintiffs' motion which was for summary judgment on theissue of liability insofar as asserted against the defendants Rafael A. Figueroa andI&R Private Service, and substituting therefor a provision denying that branch ofthe motion; as so modified, the order is affirmed insofar as appealed from, without costsor disbursements.
This action to recover damages for personal injuries arises from an accidentinvolving three motor vehicles. The plaintiff Azeddine Mahieddine-Benziane, the driverof the lead vehicle, was stopped at a red light at an intersection when the vehicle he wasdriving was struck in the rear by a vehicle immediately behind him operated by thedefendant Rafael A. Figueroa and owned by the defendant I&R Private Service(hereinafter together the defendants). The defendants' vehicle was struck in the rear by avehicle leased and operated by the defendant Patrick J. O'Connor.
As is relevant to this appeal, Mahieddine-Benziane and his wife, the plaintiff MariaIelati (hereinafter together the plaintiffs), moved for summary judgment on the issue ofliability. The defendants cross-moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against them, asserting that their vehicle was stopped at thelight when it was struck by O'Connor's vehicle and, as a result, was propelled into theplaintiffs' lead vehicle. The Supreme Court, inter alia, granted the plaintiffs' motion anddenied the defendants' cross motion.
The Supreme Court erred in granting that branch of the plaintiffs' motion which wasfor summary judgment on the issue of liability insofar as asserted against the defendants.The plaintiffs made a prima facie showing of their entitlement to judgment as a matter[*2]of law on the issue of liability by submitting evidencethat their vehicle was lawfully stopped when the accident occurred, and thatMahieddine-Benziane did not engage in any culpable conduct that contributed to theaccident. However, in opposition, the defendants raised a triable issue of fact as towhether they were completely free from fault in the happening of the accident bysubmitting evidence that their vehicle was propelled into the lead vehicle when it wasstruck in the rear by O'Connor's vehicle (see Phillip v D&D Carting Co., Inc., 136 AD3d 18, 25[2015]; Anjum v Bailey,123 AD3d 852, 853 [2014]; Pinilla v New York City Tr. Auth., 122 AD3d 703, 705[2014]). Thus, the Supreme Court should have denied that branch of the plaintiffs'motion which was for summary judgment on the issue of liability insofar as assertedagainst the defendants.
The Supreme Court properly denied that branch of the defendants' cross motionwhich was for summary judgment dismissing the complaint insofar as asserted againstthem (see Polanco-Espinal vCity of New York, 84 AD3d 914, 915 [2011]; Vavoulis v Adler, 43 AD3d1154, 1156 [2007]).
The defendants established their prima facie entitlement to judgment as a matter oflaw by submitting evidence demonstrating that, prior to the accident, their vehicle wasstopped and that it was propelled into the lead vehicle when it was struck in the rear byO'Connor's vehicle (seeFonteboa v Nugget Cab Corp., 123 AD3d 759, 760 [2014]; Raimondo v Plunkitt, 102AD3d 851, 852 [2013]). However, in opposition, the plaintiffs submitted thedeposition testimony of Mahieddine-Benziane, in which he indicated that he experiencedtwo impacts, thereby raising a triable issue of fact as to whether the defendants' vehiclestruck the lead vehicle before it was struck in the rear by O'Connor's vehicle.
The defendants' remaining contention is without merit. Leventhal, J.P., Miller, Duffyand Connolly, JJ., concur.