BATTOCCHIO v. City of New York, et al., Defendants. (2019)

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about May 2, 2018, which denied defendants Scott V. Paolino and Dragonetti Brothers Landscaping Nursery and Tree Care, 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.

In this rear-end collision case, the fact that the truck owned and operated by defendants had entered onto the parkway one exit earlier than authorized by a permit issued by the Department of Transportation, standing alone, does not establish that the early entry onto the parkway was a proximate cause of the accident (Barry v. Pepsi–Cola Bottling Co. of N.Y., Inc., 130 A.D.3d 500, 11 N.Y.S.3d 857 [1st Dept. 2015], lv denied 26 N.Y.3d 910, 2015 WL 7288917 [2015] ).  The record reflects that the accident occurred on a dry and sunny day with light traffic, that defendant Paolino was driving the truck slowly, and that Paolino had turned on the truck's hazard lights.  The truck's presence on the parkway merely furnished the condition or occasion for the occurrence of the accident, but not its cause (id.;  Beloff v. Gerges, 80 A.D.3d 460, 915 N.Y.S.2d 242 [1st Dept. 2011] ).

Plaintiffs' proffered excuse for the accident, that the bright sunlight may have made it difficult for the decedent to see defendants' truck driving through the tunnel, does not constitute a nonnegligent explanation for the rear-end collusion (Morales v. Garzon, 120 A.D.3d 1126, 992 N.Y.S.2d 418 [1st Dept. 2014], lv denied 25 N.Y.3d 902, 2015 WL 1471750 [2015];  Barry, 130 A.D.3d at 500, 11 N.Y.S.3d 857).  The affidavit by plaintiffs' accident reconstruction expert is not based on any evidence and therefore fails to raise an issue of fact (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002];  Wright v. New York City Hous. Auth., 208 A.D.2d 327, 331, 624 N.Y.S.2d 144 [1st Dept. 1995] ).