MARTINEZ v. NOVIN

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

Antonio MARTINEZ, et al., Respondents, v. Zachary F. NOVIN, et al., Appellants (and other titles).

Decided: March 24, 2003

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, GABRIEL M. KRAUSMAN, and DANIEL F. LUCIANO, JJ. Zawacki, Everett, Gray & McLaughlin, New York, N.Y. (Daniel J. Herrera of counsel), for appellants.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Garson, J.), dated May 23, 2002, which granted the plaintiffs' motion for summary judgment on the issue of liability and directed a trial on the issue of damages.   Justice Krausman has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c] ).

ORDERED that the order is affirmed, without costs or disbursements.

The injured plaintiff, Antonio Martinez, was the occupant of a double-parked vehicle that was struck in the rear by a vehicle operated by the defendant Zachary F. Novin.   The Supreme Court granted the plaintiffs' motion for summary judgment on the issue of liability and directed a trial on damages.   We affirm.

 Contrary to the defendants' contention, any issue of fact as to whether the injured plaintiff failed to use an available seat belt did not prevent the granting of the plaintiffs' motion for summary judgment on the issue of liability (see Vehicle and Traffic Law § 1229-c[3], [8];  Spier v. Barker 35 N.Y.2d 444, 363 N.Y.S.2d 916, 323 N.E.2d 164;  see also O'Connor v. Mahopac Cent. School Dist., 259 A.D.2d 530, 692 N.Y.S.2d 76;  Roach v. Szatko, 244 A.D.2d 470, 664 N.Y.S.2d 101;  Davis v. Bradford, 226 A.D.2d 670, 642 N.Y.S.2d 48;  Siegfried v. Siegfried, 123 A.D.2d 621, 507 N.Y.S.2d 20;  Bongianni v. Vlasovetz, 101 A.D.2d 872, 476 N.Y.S.2d 186;  but see Premo v. Lam, 222 A.D.2d 872, 635 N.Y.S.2d 319).   Whether the injured plaintiff failed to use an available seat belt, and whether any such failure resulted in an exacerbation of the injuries that he suffered, are among the issues that may be decided at the trial on the issue of damages (see Spier v. Barker, supra;  see also Garcia v. Tri-County Ambulette Service, Inc., 282 A.D.2d 206, 723 N.Y.S.2d 163;  O'Connor v. Mahopac Cent. School Dist., supra;  Roach v. Szatko, supra;  Davis v. Bradford, supra;  Stein v. Penatello, 185 A.D.2d 976, 587 N.Y.S.2d 37;  DiMauro v. Metropolitan Suburban Bus Auth., 105 A.D.2d 236, 247, f. 4, 483 N.Y.S.2d 383;  Curry v. Moser, 89 A.D.2d 1, 4-8, 454 N.Y.S.2d 311).

 Similarly, the existence of triable issues of fact as to the merits of the third-party action for contribution (see CPLR 1401, 1403), including a possible issue of fact as to whether the third-party defendant's negligence in leaving her vehicle double-parked contributed to the accident (see e.g. Mitchum v. Friend, 270 A.D.2d 841, 705 N.Y.S.2d 152;  Purcell v. Axelsen, 286 A.D.2d 379, 729 N.Y.S.2d 495;  Calafiura-Ehrlich v. Spiros Sys. 40, 259 A.D.2d 580, 686 N.Y.S.2d 769;  Callihan v. Moore, 188 A.D.2d 714, 591 N.Y.S.2d 87), did not preclude the granting of summary judgment on the issue of liability in favor of the plaintiffs and against the defendants in the main action.  “The disposition of the primary action does not, of course, necessarily require either recovery upon, or dismissal of the third-party action * * * which may, of course, be prosecuted independently” (Johnson v. General Mut. Ins. Co., 26 A.D.2d 602, 603, 271 N.Y.S.2d 428, see CPLR 1010;  Metropolitan Sand & Gravel Corp. v. Lipson, 7 A.D.2d 916, 182 N.Y.S.2d 934;  Washington v. Morantz, 11 Misc.2d 273, 177 N.Y.S.2d 470;  Itoh v. Kimi Sales, 74 Misc.2d 402, 406, 345 N.Y.S.2d 416;  Lewis v. Jim's Boat Yard, 70 Misc.2d 425, 427, 333 N.Y.S.2d 200).

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