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Ganpat v. Warren

Appellate Term of the Supreme Court of New York, First Department
Nov 19, 2004
2004 N.Y. Slip Op. 51420 (N.Y. App. Term 2004)

Opinion

570904/03.

Decided November 19, 2004.

Defendants Kawall Bandham and Gelco Corporation appeal from an order of the Civil Court of the City of New York, Bronx County, entered September 3, 2003 (Alison Y. Tuitt, J.) which, inter alia, denied their motion for summary judgment dismissing the complaint and cross claims against them in action number 1.

Order entered September 3, 2003 (Alison Y. Tuitt, J.) reversed, with $10 costs, motion by defendants Bandham and Gelco granted and, on a search of the record, motion by the O'Gorman defendants granted. The Clerk is directed to enter judgment in favor of the aforesaid defendants dismissing the complaint and all cross claims against them.

PRESENT: HON. LUCINDO SUAREZ, P.J. HON. WILLIAM P. McCOOE HON. WILLIAM J. DAVIS, Justices.


This negligence action arises from a three-car collision on the Hutchinson River Parkway. The record evidence, including the parties' deposition testimony, shows that a vehicle owned by defendant Josh O'Gorman and driven by defendant Michael O'Gorman came to a stop in heavy traffic in the right southbound lane of the highway near an exit ramp. A car driven by defendant-appellant Bandham and owned by defendant-appellant Gelco Corporation (Gelco), also travelling in the right lane, was able to stop safely behind the O'Gorman vehicle. A car owned and driven by defendant Warren — whose culpability was not disputed below — then collided with the rear of Bandham's stopped vehicle, causing it to strike the O'Gorman vehicle in the rear.

Defendants-appellants Bandham and Gelco, as well as the O'Gorman defendants, met their burden of establishing entitlement to summary judgment by presenting deposition testimony and other evidence showing that their vehicles were stopped in traffic for upwards of one minute before the collision occurred ( see Flores v. Stevenson, 302 AD2d 357). In such circumstances, responsibility presumptively rests with — and was effectively conceded by — the rearmost driver, i.e., defendant Warren ( see Mustafaj v. Lugo, 5 AD3d 138). In response, plaintiffs failed to raise a material issue of fact requiring a trial. Insufficient in this regard was the claimed discrepancy in the parties' deposition testimony concerning the precise distance between the O'Gorman and Bandham vehicles ( see Malone v. Morillo, 6 AD3d 324) or the isolated hearsay statement in the MV-104 accident report that the O'Gorman vehicle was "slowing [down]) for traffic" at the time of the collision ( see Lacagnino v. Gonzalez, 306 AD2d 250; Johnson v. Phillips, 261 AD2d 269, 270). While the O'Gorman defendants did not file a notice of appeal from the denial of their cross motion for summary judgment, this Court can search the record and grant summary judgment to a non-appealing party ( Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 NY2d 106, 110-112).

This constitutes the decision and order of the court.


Summaries of

Ganpat v. Warren

Appellate Term of the Supreme Court of New York, First Department
Nov 19, 2004
2004 N.Y. Slip Op. 51420 (N.Y. App. Term 2004)
Case details for

Ganpat v. Warren

Case Details

Full title:RITA LATCHMIN GANPAT and TAHINDRADAL GANPAT, Plaintiffs-Respondents, v…

Court:Appellate Term of the Supreme Court of New York, First Department

Date published: Nov 19, 2004

Citations

2004 N.Y. Slip Op. 51420 (N.Y. App. Term 2004)