Opinion
8148 Index 102021/08
01-22-2019
Herman C. FRANCO, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents.
Bisogno & Meyerson, LLP, Brooklyn (Elizabeth Mark Meyerson of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Max McCann of counsel), for respondents.
Bisogno & Meyerson, LLP, Brooklyn (Elizabeth Mark Meyerson of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Max McCann of counsel), for respondents.
Friedman, J.P., Kapnick, Gesmer, Oing, Moulton, JJ.
Order, Supreme Court, New York County (W. Franc Perry, J.), entered October 23, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established entitlement to judgment as a matter of law in this action where he was injured when defendants' tow truck was left unattended by its driver, defendant Millar, and rolled backwards into plaintiff's car, which was stopped behind the tow truck. When a driver fails to secure an unattended vehicle sufficiently to prevent it from starting to move on its own, the driver is negligent (see Spence v. Lake Serv. Sta., Inc., 13 A.D.3d 276, 278, 788 N.Y.S.2d 337 [1st Dept. 2004] ; see also Schiffer v. Sunrise Removal, Inc., 62 A.D.3d 776, 780, 879 N.Y.S.2d 518 [2d Dept. 2009] ).
In opposition, defendants did not raise a triable issue of fact as they failed to offer a non-negligent explanation for the collision (see Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept. 1999] ). Defendants' speculation that, even though Millar left the gear in "park" before exiting the tow truck, the gear must have slipped into reverse on its own due to some mechanical failure is insufficient to raise an issue of fact (see Flood v. Travelers Vil. Garage, 66 A.D.2d 726, 727, 411 N.Y.S.2d 324 [1st Dept. 1978] ). Defendants present no evidence of any type of mechanical failure or defect in the tow truck, which Millar was able to drive back to the depot after the accident without incident.