DeROSA v. John A. Donahue, Defendant-Appellant. (2005)

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

Frank DeROSA, et al., Plaintiffs-Respondents, v. Ann VALENTINO, et al., Defendants-Respondents, John A. Donahue, Defendant-Appellant.

Decided: January 27, 2005

MAZZARELLI, J.P., SULLIVAN, WILLIAMS, GONZALEZ, JJ.

Leahey & Johnson, P.C., New York (James P. Tenney of counsel), for appellant. Daly, Bamundo, Dalton & Schermerhorn, LLP, New York (Craig C. DeMeo of counsel), for DeRosa respondents. McCabe, Collins, McGeough & Fowler, LLP, Mineola (Patrick J. Engle of counsel), for Valentino respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 30, 2004, which denied defendant Donahue's motion for summary judgment dismissing the complaint and all cross claims against him, unanimously affirmed, without costs.

Although the injured plaintiff and defendant Donahue both testified that the vehicle they were traveling in was rear-ended by the Valentino vehicle, propelling them forward and causing a chain collision, defendant Ann Valentino's testimony created an issue of fact as to whether her vehicle actually came in contact with the Donahue vehicle. These differing versions of how the accident occurred, and the possible contributions by the various defendants, preclude summary disposition.

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