ALGARIN v. Deborah Y. Smith, et al., Defendants. (2002)

Order, Supreme Court, Bronx County (Bertram Katz J.), entered on or about January 16, 2001, which, insofar as appealed from, granted the motion of defendants Mark A. Reich and Barbara O. Hirsch for summary judgment and dismissed the complaint against them, unanimously reversed, on the law, without costs, the motion for summary judgment denied and the complaint reinstated as against defendants Mark A. Reich and Barbara O. Hirsch.

The Supreme Court erred in concluding that plaintiffs failed to demonstrate any triable issues of fact as to the negligence of defendants Mark A. Reich and Barbara O. Hirsch in this chain reaction rear-end collision (cf., Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545;  Galante v. BMW Fin. Servs., 223 A.D.2d 421, 636 N.Y.S.2d 58).   The deposition testimony and affidavits of plaintiffs Rafael Algarin and Hector Algarin, driver and passenger respectively, that they felt a strong impact followed by a second weaker impact sufficiently place at issue defendants' denial of negligence.   Such evidence tends to demonstrate that defendants' vehicle had already struck plaintiffs' vehicle prior to the second impact, thus precluding summary relief (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The contention of defendants, Reich and Hirsch, to wit, that the double impact resulted from a rear end collision with another vehicle which then forced their vehicle into the one operated by plaintiff Rafael Algarin, is an issue for the fact-finder to resolve.