Carr v. Cali

172 A.D.3d 1303

101 N.Y.S.3d 420

Conor P. CARR, Appellant,

v.Salvatore CALI, et al., Respondents, et al., Defendants.

2017–10589

Index No. 705483/13

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

Argued—March 8, 2019

May 29, 2019

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn and Lauren E. Bryant ], of counsel), for appellant.

DeSena & Sweeney, LLP, Bohemia, N.Y. (Shawn P. O'Shaughnessy of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered August 30, 2017. The order, insofar as appealed from, granted that branch of the motion of the defendants Salvatore Cali and Apple Towing Co., Inc., which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action to recover damages for injuries allegedly sustained by him in a motor vehicle accident on the Long Island Expressway. The accident allegedly occurred when, in an attempt to avoid colliding with a disabled truck which was stopped in his lane of travel, the plaintiff attempted to move his vehicle into the lane to the right. The plaintiff's vehicle came into contact with a motor vehicle traveling in that lane, and then struck the right rear corner of the disabled truck. A tow truck owned by the defendants Apple Towing Co., Inc., and operated by the defendant Salvatore Cali (hereinafter together the tow truck defendants), was responding to the scene to remove the disabled truck. The tow truck was in front of the disabled truck at the time of the collision and there is no evidence that it came into contact with the plaintiff's vehicle. The plaintiff alleged, inter alia, that the tow truck defendants violated the Vehicle and Traffic Law and negligently stopped the tow truck on the highway, which created a hazard and danger for other vehicles. The tow truck defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not a proximate cause of the accident. The Supreme Court granted the motion. The plaintiff appeals.

Contrary to the plaintiff's contention, the submissions of the tow truck defendants demonstrated, prima facie, that they did not violate Vehicle and Traffic Law § 1202(a)(1)(j) since Cali stopped on the highway in front of the disabled truck in order to remove it from the middle lane of the expressway, which constituted an emergency (see Vehicle and Traffic Law § 1202[a][1][j] ; Pinilla v. City of New York, 136 A.D.3d 774, 777, 24 N.Y.S.3d 710 ). The tow truck defendants further demonstrated that they did not negligently fail to warn oncoming traffic of the presence of the disabled truck (cf. Gregson v. Terry, 35 A.D.3d 358, 361, 827 N.Y.S.2d 181 ). Moreover, the submissions of the tow truck defe...