Opinion
2002-1572 K C.
Decided March 26, 2004.
Appeal by plaintiff from an order of the Civil Court, Kings County (D. Kurtz, J.), entered September 26, 2002, which denied his motion for partial summary judgment against defendants on the issue of liability.
Order affirmed without costs.
PRESENT: ARONIN, J.P., PATTERSON and RIOS, JJ.
Plaintiff commenced this action to recover damages for personal injuries he sustained when the car he was driving was struck by a truck owned by defendant Ryder Truck Rental and driven by defendant Martin Stone. The accident occurred as the vehicles were driving in heavy traffic. Plaintiff was driving his car in the right lane and Stone was driving the truck in the adjacent middle lane. When plaintiff's lane was blocked by a double-parked car, he began to move into Stone's lane so that he could get around the parked car. As plaintiff was doing so, the traffic light, which governed their movement, turned red. Inasmuch as there was another car in front of plaintiff's car in the middle lane, the vehicles stopped, with at least one-half of plaintiff's car angled into Stone's lane. When the traffic light turned green, Stone drove forward and collided with plaintiff's car. The point of impact on plaintiff's car was the rear quarter panel on the driver's side. Plaintiff and his front seat passenger both testified during their examinations before trial that plaintiff's car was not moving when the accident occurred. Plaintiff's rear seat passenger testified that plaintiff's car had started moving when the accident occurred because she sensed movement. Stone did not know how the accident occurred since he did not see plaintiff's car until after the accident.
Plaintiff moved for summary judgment on the issue of liability. Defendants opposed the motion claiming that there was an issue of fact as to whether plaintiff's car was moving when the accident occurred and, if so, whether the movement was a proximate cause of the accident. The court denied plaintiff's motion, finding the foregoing to be an issue of fact. This appeal ensued.
It is undisputed that when the traffic light was red, plaintiff's car was stopped with at least one-half of his vehicle at an angle in Stone's lane, in front of the truck driven by Stone. Also undisputed is the fact that when the traffic light turned green, Stone drove forward and there was a collision with plaintiff's car. Viewing the deposition testimony in the light most favorable to defendants and resolving all reasonable inferences in their favor ( see Mitchell v. Fiorini Landscape, 253 AD2d 860), plaintiff's car was moving when the accident occurred. In our opinion, because there is a triable question of fact as to whether the movement of plaintiff's car was a substantial factor in bringing about the accident, plaintiff's motion for summary judgment was properly denied.
Aronin, J.P., and Rios, J., concur.
Patterson, J., dissents in a separate memorandum.
Patterson, J. dissents and votes to reverse the order and grant plaintiff's motion for partial summary judgment on the issue of liability in the following memorandum:
I respectfully disagree with my colleagues' conclusion that the question as to whether plaintiff's car was moving at the time of the accident constituted a material issue of fact. The undisputed evidence established that if the car was moving, it was not moving fast and the accident occurred before plaintiff's car moved "even a feet [ sic]," as the rear passenger testified. Thus, inasmuch as the record is bereft of any evidence that movement of plaintiff's car was a substantial factor in bringing about the accident ( see Rieman v. Smith, 302 AD2d 510; see also Whitehead v. Reithoffer Shows, 304 AD2d 754), a trial is unnecessary. As a result, in my opinion, plaintiff's motion for summary judgment on the issue of liability should have been granted ( see Alvarez v. Prospect Hosp., 68 NY2d 320).