Kante v. Tong Fei Chen

176 A.D.3d 928

111 N.Y.S.3d 612

Mamadou KANTE, Plaintiff-Respondent,

v.TONG FEI CHEN, Defendant third-party Plaintiff-Respondent,Osvaldo Cortes, et al., Defendants third-party Defendants-Appellants.

2019–00316

Index No. 705247/15

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

Argued—May 21, 2019

October 16, 2019

Ferro & Stenz (Russo & Tambasco, Melville, N.Y. [Yamile Al–Sullami and Gerard Ferrara], of counsel), for defendants third-party defendants-appellants.

Mallilo & Grossman, Flushing, N.Y. (Gary Caliendo of counsel), for plaintiff—respondent.

Nancy L. Isserlis (Saretsky Katz & Dranoff, LLP, New York, N.Y. [Ashley S. Rajakaruna], of counsel), for defendant third-party plaintiff-respondent.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants third-party defendants Osvaldo Cortes and Sergio Ivan Perez appeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered November 28, 2018. The order denied those defendants' motion for summary judgment dismissing the complaint, the third-party complaint, and all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs to the defendants third-party defendants-appellants payable by the plaintiff-respondent and the defendant third-party plaintiff-respondent, and the motion of the defendants third-party defendants Osvaldo Cortes and Sergio Ivan Perez for summary judgment dismissing the complaint, the third-party complaint, and all cross claims insofar as asserted against them is granted.

The plaintiff allegedly was injured when his vehicle was struck in the rear by another vehicle on the eastbound Brooklyn–Queens Expressway in Queens. Shortly before the accident, the defendant third-party defendant Sergio Ivan Perez was operating a vehicle owned by his uncle, the defendant third-party defendant Osvaldo Cortes, in the left lane of travel when he was flagged down by an unidentified motorist standing outside of a disabled vehicle located on the left side of the road. Perez stopped his vehicle behind the disabled vehicle, activated his hazard lights, and exited his vehicle to provide assistance.

Approximately 15 minutes later, the plaintiff, who was operating a livery cab, approached Perez's vehicle in the left lane, eventually coming to a complete stop behind it, engaged his right turn signal, and attempted to change lanes from the left lane to the middle lane. While waiting to change lanes, the plaintiff observed a speeding SUV approaching from behind in the left lane. The SUV, operated by the defendant third-party plaintiff Tong Fei Chen (hereinafter Chen) struck the rear of the plaintiff's vehicle, moving it to the right. The SUV then struck the rear of Perez's vehicle. At no time did the plaintiff's vehicle come into contact with Perez's vehicle.

In May 2015, the plaintiff commenced an action against Chen, who then commenced a third-party action against Cortes and Perez (hereinafter together the Perez defendants). In March 2017, the plaintiff commenced a separate action against the Perez defendants. In September 2017, the actions were consolidated. Following discovery, the Perez defendants moved for summary judgment dismissing the complaint, the third-party complaint, and all cross claims insofar as asserted against them. The Supreme Court denied the motion. The Perez defendants appeal.

"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( White v. Adom Rental Transp., Inc., 150 A.D.3d 938, 939, 54 N.Y.S.3d 98 ; see Hurst v. Belomme, 142 A.D.3d 642, 642, 36 N.Y.S.3d 735 ; Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ). "Although the issue of proximate cause is generally one for the finder of fact, ‘liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes’ " ( Castillo v. Amjack Leasing Corp., 84 A.D.3d 1298, 1298, 924 N.Y.S.2d 156, quoting Ely v. Pierce, 302 A.D.2d 489, 489, 755 N.Y.S.2d 250 ; see Chulpayeva v. 109–01 Realty Co., LLC, 170 A.D.3d 798, 95 N.Y.S.3d 323 ).

Here, in support of their motion for summary judgment, the Perez defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the transcripts of the deposition testimony of the plaintiff and Perez. This evidence demonstrated that Perez's conduct of stopping his vehicle in the left lane of travel with its hazard lights engaged was not a proximate cause of the collision between Chen's SUV and the plaintiff's vehicle, but rather merely furnished the condition or...