NUNEZ v. Lucrecia Escalera, Defendant-Respondent.

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

Martha NUNEZ, et al., Plaintiffs-Respondents, v. Teresa FERNANDEZ, Defendant-Appellant, Lucrecia Escalera, Defendant-Respondent.

Decided: January 13, 2005

BUCKLEY, P.J., ANDRIAS, SULLIVAN, ELLERIN, WILLIAMS, JJ. Gallagher, Walker, Bianco & Plastaras, Esqs., Mineola (Peter D. Lechleitner of counsel), for appellant. Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for Lucrecia Escalera, respondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 15, 2003, which, to the extent appealed from, denied defendant Fernandez's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor of defendant Teresa Fernandez dismissing the complaint as against her.

In this rear-end collision case where defendant Fernandez's stopped vehicle was struck and the motion court granted her summary judgment against defendant Escalera, the driver of the offending vehicle, it was error to deny her summary judgment as well against plaintiffs, who were passengers in the offending vehicle (see Figueroa v. Luna, 281 A.D.2d 204, 206, 721 N.Y.S.2d 635 [2001];  Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 [1999] ).   Escalera offered no opposition to summary judgment in the motion court.   That court's reliance on Garcia v. Tri-County Ambulette Serv., 282 A.D.2d 206, 723 N.Y.S.2d 163 [2001] was misplaced, inasmuch as that decision granted an innocent plaintiff/passenger summary judgment as to liability against both vehicle operators, whereas here, one vehicle operator has been held solely liable.