MCLEAN v. RIPOLI (2018)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered January 24, 2017, which denied defendants Pedro Lay and Autorama Enterprises of Bronx, Inc.'s motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

On February 12, 2010, at about 1:45 a.m., plaintiff Sean McLean was riding in a Volkswagen Jetta, which was owned by codefendant Beverley Shelly and being operated by his cousin, nonparty Travis Roberts, when the vehicle broke down on the southbound Major Deegan Expressway near the Van Cortlandt Park exit.  Defendant Pedro Lay, an employee of defendant Autorama Enterprises of Bronx, Inc., was hitching the Jetta to his tow truck when a vehicle owned and operated by codefendant Eric A. Ripoli rear-ended the Jetta, pushed it into the rear of the tow truck then collided with a fourth nonparty vehicle.  Ripoli has pled guilty to driving under the influence for his role in the accident.

Defendants-appellants are entitled to summary judgment, because the tow truck driver's affirmative negligence, if any, did nothing more than furnish the condition or give rise to the occasion by which plaintiff's injury was made possible (see Roman v. Cabrera, 113 A.D.3d 541, 542, 979 N.Y.S.2d 310 [1st Dept. 2014], lv dismissed in part, denied in part 24 N.Y.3d 949, 994 N.Y.S.2d 49, 18 N.E.3d 751 [2014];  Spence v. Lake Serv. Sta., Inc., 13 A.D.3d 276, 277–278, 788 N.Y.S.2d 337 [1st Dept. 2004] ).  There is no allegation that their actions violated a traffic regulation and the record shows that the tow truck driver was in the process of securing the vehicle to tow it off the expressway when the accident happened.

Plaintiff's assertion that the accident would not have occurred if the tow truck driver had placed additional flares or moved the ones that the police officers had placed, displayed cones or removed the Jetta from the location sooner is speculative and insufficient to raise an issue of fact, because it is undisputed that Ripoli fell asleep before his vehicle rear-ended the Jetta (see Iqbal v. Thai, 83 A.D.3d 897, 898, 920 N.Y.S.2d 789 [2d Dept. 2011];  Mendrykowski v. New York Tel. Co., 2 A.D.3d 1410, 768 N.Y.S.2d 874 [4th Dept. 2003] ).