Bonafede v. Bonito

145 A.D.3d 842

43 N.Y.S.3d 523

2016 N.Y. Slip Op. 08493

Adalgisa BONAFEDE, etc., appellant,

v.Anthony BONITO, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 21, 2016.

Krentsel & Guzman, LLP, New York, NY (Steven E. Krentsel and Julie T. Mark of counsel), for appellant.

Raven & Kolbe, LLP, New York, NY (Michael T. Gleason of counsel), for respondents.

REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Baily–Schiffman, J.), dated September 17, 2015, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint on the issue of no liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendants' motion which was for summary judgment dismissing the complaint on the issue of no liability is denied, the determination in the order, in effect, denying, as academic, that branch of the defendants' motion which was for summary judgment dismissing the complaint on the alternative ground that the plaintiff's decedent did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident is vacated, and that branch of the motion is denied on the merits.

On July 2, 2011, at the intersection of 19th Avenue and 65th Street in Brooklyn, the plaintiff's decedent's vehicle collided with an ambulance driven by the defendant Anthony Bonito and owned by the defendant American Medical Response. The defendants moved for summary judgment dismissing the complaint on the issue of no liability and on the alternative ground that the plaintiff's decedent did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted that branch of the motion which was for summary judgment dismissing the complaint on the issue of no liability, and the plaintiff appeals.

Contrary to the defendants' contention, they failed to establish, prima facie, that they were entitled to judgment as a matter of law dismissing the complaint on the issue of no liability. The evidence submitted by the defendants failed to eliminate triable issues of fact as to whether the ambulance's sirens were activated at the time of the accident, so as to give rise to the privilege to proceed against a red signal light (see Vehicle and Traffic Law §§ 1104[b], [c] ; Abood v. Hospital Ambulance Serv., 30 N.Y.2d 295, 299, 332 N.Y.S.2d 877, 283 N.E.2d 754 ). Accordingly, the Supreme Court should have denied that branch of the defendants' motion (see Shalom v. East Midwood Volunteer Ambulance Corp., 138 A.D.3d 724, 726, 29 N.Y.S.3d 457 ; Pollak v. Maimonides Med. Ctr., 136 A.D.3d 1008, 1009, 25 N.Y.S.3d 646 ; Ryan v. Town of Riverhead, 117 A.D.3d 707, 710, 985 N.Y.S.2d 584 ).

Since the Supreme Court awarded summary judgment to the defendants on the issue of no...