NER v. Joy N. Legreid, Defendant-Respondent. (1997)

In an action to recover damages for personal injuries, the defendant George Gerardi appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Lockman, J.), dated October 2, 1996, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as they are asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the motion of the defendant George Gerardi is granted, and the complaint and all cross claims are dismissed insofar as they are asserted against that defendant.

The defendant George Gerardi was the operator of the second vehicle involved in a four-car, chain-reaction collision.   The evidence in the record, including the deposition testimony of Gerardi as well as that of the operator of the first vehicle and of the plaintiffs themselves, demonstrated that Gerardi succeeded in coming to a full stop behind the first vehicle, and that the vehicle following Gerardi also came to a full stop before being struck by the plaintiffs' vehicle and propelled into Gerardi.   The plaintiffs failed to come forward with evidence in admissible form to substantiate their claim that Gerardi negligently stopped short and/or followed the vehicle in front of him too closely (see, e.g., DiPaola v. Scherpich, 239 A.D.2d 459, 657 N.Y.S.2d 883;  Ayoub v. Dufont, 229 A.D.2d 368, 644 N.Y.S.2d 555;  Bando-Twomey v. Richheimer, 229 A.D.2d 554, 646 N.Y.S.2d 155;  Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110).   Gerardi's mere statement during his deposition that he “had to make an abrupt stop” was insufficient for this purpose.   In any event, under the circumstances of this case, any purported negligence on the part of Gerardi could not have been a proximate cause of the collision as a matter of law (see, e.g., Lehmann v. Sheaves, 231 A.D.2d 687, 647 N.Y.S.2d 557;  Chamberlin v. Suffolk County Labor Dept., 221 A.D.2d 580, 634 N.Y.S.2d 202;  Parise v. Meltzer, 204 A.D.2d 295, 611 N.Y.S.2d 291;  Smith v. Cafiero, 203 A.D.2d 355, 610 N.Y.S.2d 76;  Pasek v. Playtime Kiddiewear, 179 A.D.2d 412, 577 N.Y.S.2d 854).   Accordingly, Gerardi demonstrated his entitlement to summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

MEMORANDUM BY THE COURT.