INSINGA v. Petri Baking Products, et al., defendants-respondents. (2006)

In an action to recover damages for personal injuries, the defendants F.C. General Contracting and Frank J. Ciliotta appeal from so much of an order of the Supreme Court, Queens County (Price, J.), dated December 9, 2004, as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the defendants Ryder and Chung Woo Han cross-appeal from so much of the same order as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs payable to the plaintiff-respondent and the defendants-respondents appearing separately and filing separate briefs.

 The defendants Ryder and Chung Woo Han established their prima facie entitlement to judgment as a matter of law by submitting evidence that the vehicle owned by Ryder and driven by Han was stopped at the time of the accident (see Garces v. Karabelas, 17 A.D.3d 633, 794 N.Y.S.2d 75;  Macauley v. Elrac, Inc., 6 A.D.3d 584, 775 N.Y.S.2d 78).   In response to this prima facie showing, however, the plaintiff raised triable issues of fact as to whether Han was also negligent in the operation of his vehicle by following too closely, driving too fast for the traffic conditions, or making an inappropriate sudden stop (see Thoman v. Rivera, 16 A.D.3d 667, 792 N.Y.S.2d 558;  Brodie v. Global Asset Recovery, 12 A.D.3d 390, 783 N.Y.S.2d 832;  Martin v. Pullafico, 272 A.D.2d 305, 707 N.Y.S.2d 891).

 The defendants F.C. General Contracting and Frank J. Ciliotta also established their prima facie entitlement to judgment as a matter of law by submitting evidence that the vehicle owned by F.C. General Contracting and driven by Ciliotta was stopped at the time of the accident (see Keenan v. Ravit, 262 A.D.2d 366, 691 N.Y.S.2d 163;  Acampora v. Davis, 203 A.D.2d 399, 610 N.Y.S.2d 311).   In response to this prima facie showing, however, the plaintiff raised triable issues of fact as to whether Ciliotta was also negligent in the operation of his vehicle by following too closely or cutting between the other two vehicles (see Mohan v. Puthumana, 302 A.D.2d 437, 754 N.Y.S.2d 902;  Sing-Lam Ng v. Beatty, 300 A.D.2d 648, 752 N.Y.S.2d 706;  Rozengauz v. Lok Wing Ha, 280 A.D.2d 534, 720 N.Y.S.2d 181;  Mendiolaza v. Novinski, 268 A.D.2d 462, 703 N.Y.S.2d 49;  Silberman v. Surrey Cadillac Limousine Service, 109 A.D.2d 833, 486 N.Y.S.2d 357).

Therefore, the Supreme Court properly denied the motions and cross motion.