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

Jessica H. SILVERMAN, Plaintiff-Appellant, v. Nancy SCIARTELLI, as executrix of the estate of James J. Sciartelli, deceased, and Genuine Parts Company, as successor in interest to H.A. Holden, Inc., Defendants-Respondents.

Decided: December 31, 2003

PRESENT:  PINE, J.P., WISNER, HURLBUTT, KEHOE, AND HAYES, JJ. Hiscock & Barclay, LLP, Syracuse (Timothy J. De More of counsel), for Plaintiff-Appellant. Roe, Shantz and Iacono, Liverpool (Frederick F. Shantz of counsel), for Defendant-Respondent Nancy Sciartelli, as executrix of the estate of James J. Sciartelli, deceased. Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Kevin E. Hulslander of counsel), for Defendant-Respondent Genuine Parts Company, as successor in interest to H.A. Holden, Inc.

Supreme Court erred in granting defendants' motions seeking summary judgment dismissing the amended complaint.   Plaintiff commenced this action seeking damages for injuries that she sustained when the vehicle that she was driving collided with a vehicle operated by James J. Sciartelli and owned by defendant Genuine Parts Company (Genuine Parts).   James Sciartelli subsequently died, and plaintiff commenced this action against both the executrix of his estate and Genuine Parts.   Defendants failed to meet their initial burden of establishing their entitlement to judgment as a matter of law and thus their motion should have been denied, “regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   In support of their motions, defendants relied solely on “claimed deficiencies in the plaintiff's proof” (Sterling v. Town of Hempstead, 260 A.D.2d 628, 628, 687 N.Y.S.2d 276;  see Cincotta v. City of New York, 292 A.D.2d 558, 559, 739 N.Y.S.2d 594;   Hicks v. City of Buffalo, 281 A.D.2d 922, 722 N.Y.S.2d 454;  Porter v. Uniroyal Goodrich Tire Co., 224 A.D.2d 674, 638 N.Y.S.2d 702) and thus failed to meet their burden of affirmatively establishing that James Sciartelli “was free from negligence” (Beyrle v. Finneron, 229 A.D.2d 1010, 1011, 645 N.Y.S.2d 192;  see Green v. County of Allegany, 300 A.D.2d 1077, 1077-1078, 752 N.Y.S.2d 487;  Tarson v. Niagara Mohawk Power Corp., 278 A.D.2d 865, 866, 718 N.Y.S.2d 755).

We note that defendants' reliance on the decision of the Third Department in Wiwigac v. Snedaker, 282 A.D.2d 801, 723 N.Y.S.2d 248 is misplaced.   That case is distinguishable on its facts inasmuch as the injured plaintiff therein was involved in two successive accidents and testified at his deposition that he “had no idea” which accident caused his injuries (id. at 802, 723 N.Y.S.2d 248).   In moving for summary judgment dismissing the complaint against him, defendant Walter Ronfeldt affirmatively established that the case fell within the rule set forth in Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828, thereby absolving him of any liability as a matter of law.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are denied and the amended complaint is reinstated.