Opinion
8559 Index 155473/17
02-28-2019
Wendell HEDIAN, Plaintiff–Respondent, v. MTLR CORP., et al., Defendants, Jack L. Spraker Doing Business as Glove City Transportation, et al., Defendants–Appellants.
Dwyer & Taglia, New York (Gary J. Dwyer of counsel), for appellants. Wingate, Rusotti, Shapiro & Halperin, LLP, New York (Noah Katz of counsel), for respondent.
Dwyer & Taglia, New York (Gary J. Dwyer of counsel), for appellants.
Wingate, Rusotti, Shapiro & Halperin, LLP, New York (Noah Katz of counsel), for respondent.
Friedman, J.P., Kapnick, Webber, Oing, Singh, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered March 14, 2018, which, insofar as appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on liability as against defendants-appellants Jack L. Spraker d/b/a Glove City Transportation and Randy L. Parese and to dismiss their affirmative defenses premised upon plaintiff's purported comparative fault, unanimously modified, on the law, to deny the motion as to defendants-appellants' liability, and otherwise affirmed, without costs.While plaintiff is correct that he demonstrated his own absence of negligence in connection with the accident and Supreme Court properly dismissed defendants-appellants' affirmative defenses premised upon his purported comparative fault, Supreme Court should have denied his motion to the extent that it sought summary judgment on the issue of defendants-appellants' negligence, because Parese's affidavit demonstrates that there are triable issues of fact as to which defendant driver was responsible for the accident (see Rodriguez v. City of New York , 31 N.Y.3d 312, 324, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018] ; Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ; Poon v. Nisanov , 162 A.D.3d 804, 807–808, 79 N.Y.S.3d 227 [2d Dept. 2018] ; Oluwatayo v. Dulinayan, 142 A.D.3d 113, 120, 35 N.Y.S.3d 84 [1st Dept. 2016] ; Moreno v. Golden Touch Transp. , 129 A.D.3d 581, 12 N.Y.S.3d 57 [1st Dept. 2015] ). The record shows that a T-bone accident occurred between defendants' and defendants-appellants' vehicles and it is possible that the jury could find that Parese had the green traffic signal when the impact between the two vehicles occurred and had acted reasonably and prudently under the circumstances (see Mack v. Seabrook , 161 A.D.3d 704, 705, 78 N.Y.S.3d 65 [1st Dept. 2018] ; Merino v. Tessel , 166 A.D.3d 760, 760–761, 87 N.Y.S.3d 554 [2d Dept. 2018] ).
Lastly, we decline to review plaintiff's arguments regarding the Vehicle and Traffic Law made for the first time on appeal, since they require additional facts to determine their applicability.