ALLEN v. PISTORINO (2013)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated January 12, 2012, which granted the plaintiffs' motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is denied.

The plaintiffs commenced this action, inter alia, to recover damages for personal injuries after a car operated by the defendant Jaclyn R. Pistorino (hereinafter Pistorino) collided with a car operated by the plaintiff Rudolph Allen. In a related case commenced on behalf of Rebecca Anzel, who was a passenger in the vehicle driven by Pistorino, the Supreme Court granted Anzel's motion for summary judgment on the issue of liability. In so doing, the Supreme Court found that, as between Pistorino and Allen, Pistorino was the sole proximate cause of the accident. Based solely upon the preclusive effect of that finding, the plaintiffs in the present case moved for summary judgment on the issue of liability. For the reasons stated in Anzel v. Pistorino (––– AD3d –––– [decided herewith] ), the determination of the Supreme Court in that case as to the relative fault between Allen and Pistorino was erroneous. Accordingly, the plaintiffs' motion for summary judgment on the issue of liability should have been denied.