RHEE v. Ricky Lovell, Defendant-Appellant. (2005)

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

Enbok RHEE, et al., Plaintiffs-Respondents, v. David WONG, Defendant-Respondent, Ricky Lovell, Defendant-Appellant.

Decided: February 24, 2005

MAZZARELLI, J.P., SULLIVAN, ELLERIN, NARDELLI, WILLIAMS, JJ.

Law Office of Mary A. Bjork, Yonkers (David Holmes of counsel), for appellant. Law Office of Seener & Seener, Melville (Steven Seener of counsel), for Rhee respondents. Cheven, Keely & Hatzis, New York (William B. Stock of counsel), for David Wong, respondent.

Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered January 15, 2004, which, to the extent appealed from as limited by the briefs, denied defendant Lovell's cross motion for summary judgment, unanimously affirmed, without costs.

Plaintiffs seek recovery for personal injuries sustained in a three-car accident. It is alleged that Lovell's automobile was struck by a hit-and-run driver and that plaintiffs' vehicle came to a stop behind Lovell's, and was then struck from the rear by defendant Wong's vehicle, driving it into Lovell's. The court denied summary relief sought by each of the parties, and only Lovell appeals. Triable issues of fact exist, including the reasonableness of Lovell's failure to pull to the side of the road after being struck by the nonparty hit-and-run driver (Bertrand v. Vingan, 249 A.D.2d 13, 671 N.Y.S.2d 226 [1998] ).

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