SILBER v. MOTOROLA INC

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

Rochelle SILBER, et al., Appellants, v. MOTOROLA, INC., et al., Respondents.

Decided: July 24, 2000

DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, ANITA R. FLORIO and SANDRA J. FEUERSTEIN, JJ. Worby Borowick Groner, LLP, (Godosky & Gentile, New York, N.Y. [Richard Godosky, William Grover, and Brian J. Isaac] of counsel), for appellants. Arnold & Porter, New York, N.Y. (Peter K. Bleakley, Michael Schissel, and David Futterman of counsel), for respondent Motorola, Inc. Capriano Lichtman & Flach, LLP, New York, N.Y. (Eleanor N. Flach of counsel), for respondent Magnadyne Corporation. Huenke & Rodriguez, Melville, N.Y. (Kenneth C. Rybacki, Jr., of counsel), for respondent East End Car Care, Inc., individually and d/b/a Tidy Car.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), entered April 30, 1999, which granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

The driver of a Ford Explorer was using a cellular telephone manufactured by the defendant Motorola, Inc., while driving.   As a result of a problem with the telephone cradle, which was manufactured by the defendant Magnadyne Corporation and installed by the defendant East End Car Care, Inc., individually and d/b/a Tidy Car, the driver of the Explorer became distracted and looked down towards the floor.   In doing so, she took her eyes off the road.   Her vehicle then crossed over into the opposing lane of traffic and struck a Toyota wagon driven by the plaintiff Rochelle Silber (hereinafter the plaintiff), and in which the remaining plaintiffs were passengers.   After settling with the driver of the Explorer, the plaintiffs sued the defendants, and they separately moved for summary judgment dismissing the complaint.

 The record showed that the defendants' actions were not a proximate cause of the accident and that, in any event, the actions of the Explorer's driver were a superseding cause of the plaintiffs' injuries.   Since the defendants made out prima facie cases for summary judgment and the plaintiffs failed to show the existence of a triable issue of fact, the Supreme Court properly granted the defendants' separate motions (see, Egan v. A.J. Constr. Corp., 94 N.Y.2d 839, 702 N.Y.S.2d 574, 724 N.E.2d 366;  Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666;  Bennett v. Long Is. Light. Co., 262 A.D.2d 437, 692 N.Y.S.2d 144;  Sorrentino v. Wild, 224 A.D.2d 607, 638 N.Y.S.2d 695;  see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

MEMORANDUM BY THE COURT.

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