LEVINE v. DAGIO CONSTRUCTION CORP (1999)

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

Mel LEVINE, appellant, et al., plaintiff, v. DAGIO CONSTRUCTION CORP., et al., respondents.

Decided: May 24, 1999

SONDRA MILLER, J.P., DAVID S. RITTER, WILLIAM C. THOMPSON and MYRIAM J. ALTMAN, JJ.

Jerrold N. Cohen, Mineola, N.Y., for appellant. Cheven, Keely & Hatzis (Thomas Torto and Jeffrey L. Caress, New York, N.Y., of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff Mel Levine appeals from an order of the Supreme Court, Nassau County (Winick, J.), dated September 10, 1998, which denied his motion for summary judgment dismissing the defendants' counterclaim insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

Contrary to the appellant's contention that the proof before the Supreme Court conclusively showed that his vehicle was stopped and in the middle lane of the highway when it was struck from behind by the vehicle owned by defendant Dagio Construction Corp. and operated by the defendant Francesco Arizzi, contradictions in the deposition testimony given by the appellant and Arizzi evince triable issues of fact sufficient to defeat a motion for summary judgment (see, Benyarko v. Avis Rent A Car Sys., 162 A.D.2d 572, 556 N.Y.S.2d 761; Young v. City of New York, 113 A.D.2d 833, 493 N.Y.S.2d 585).

Accordingly, the appellant's motion for summary judgment dismissing the defendants' counterclaim insofar as asserted against him was properly denied.

MEMORANDUM BY THE COURT.

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