CONNOR v. Michael J. Maguffin, Defendant-Respondent.

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

Margaret O'CONNOR, Plaintiff-Respondent, v. EASYRIDE, INC., et al., Defendants, Nu Suey Teung Laundry, Inc., et al., Defendants-Appellants, Michael J. Maguffin, Defendant-Respondent.

Decided: February 21, 2006

TOM, J.P., MAZZARELLI, ANDRIAS, NARDELLI, MALONE, JJ. Galvano & Xanthakis, P.C., New York (Adam W. Scheinbach of counsel), for Nu Suey Teung Laundry, Inc. and Julius L. Norton, appellants. James P. Nunemaker, Jr. & Associates, Uniondale (Nancy S. Goodman of counsel), for Felix Calderon, appellant. Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for Margaret O'Connor, respondent. Koors and Jednak, Bronx (Carol M. Wickham of counsel), for Michael J. Maguffin, respondent.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered October 15, 2004, which denied the motion by defendant Calderon and cross motion by defendants Nu Suey Teung Laundry and Norton for summary judgment, unanimously modified, on the law, Calderon's motion granted, and otherwise affirmed, without costs.   The Clerk is directed to enter judgment in favor of Felix Calderon dismissing the complaint as against him.

 Defendant Calderon was entitled to summary judgment, as there is no evidence to contradict his testimony that he was stopped at a red light for a “minute or two,” a safe distance from the rear of plaintiff's vehicle, with his foot on the brake, when he was abruptly struck from the rear by another vehicle, driven by Maguffin, propelling his car into plaintiff's (see Flores v. Stevenson, 302 A.D.2d 357, 754 N.Y.S.2d 665 [2003] ).   Maguffin's deposition testimony, that his vehicle had spun out after being struck in turn by the Easyride vehicle driven by McElhinny, substantiated Calderon's account of having been stopped at the light when he was hit from behind.

 A truck owned by Nu Suey Teung Laundry and driven by Norton was parked at the scene.   Norton testified that he had left his vehicle in “park” with the ignition running as he prepared to make a delivery.   The truck was recovered against a pole on the sidewalk across the street from where it had been parked.   Issues of fact remain as to whether this truck was illegally and unsafely double-parked, thus contributing to the multi-vehicle accident by, inter alia, obstructing the lane of traffic and the visibility of the intersection on an uphill curve ahead.   Accordingly, the cross motion for summary judgment by these defendants, seeking dismissal of the complaint and any cross claims against them, was properly denied.