Opinion
May 26, 1998
Appeal from the Supreme Court, Nassau County (Adams, J.)
Ordered that the appeal from the order dated September 25, 1997, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated April 18, 1997, is reversed insofar as appealed from, on the law, that branch of the motion of the defendant Antonio Pace which was for summary judgment dismissing the complaint insofar as asserted against him is denied, and the complaint is reinstated insofar as asserted against him; and it is further,
Ordered that the appellants, are awarded one bill of costs.
This appeal arises out of a four car accident which occurred on the Meadowbrook Parkway in Nassau County. At his deposition, the defendant Antonio Pace testified that he had stopped his vehicle behind the plaintiff's: vehicle, which had previously collided with a vehicle driven by the defendant Sharon C. Camara, and that his vehicle struck the plaintiff's vehicle only after he was hit in the rear by another vehicle driven by the defendant Glen Cunningham. In contrast, the plaintiff's both testified at their depositions that, after the collision with Camara, they felt two impacts from behind.
Although Paces testimony was sufficient to establish a prima facie case that he was entitled to summary judgment ( see, Cofrancesco v. Murino, 225 A.D.2d 648, citing Koenig v. Price, 200 A.D.2d 559), the plaintiff's testimony, which conflicted with Paces testimony as to the happening of the accident, was sufficient to raise a triable issue of fact as to whether Paces vehicle struck the plaintiff's vehicle before it was hit in the rear by Cunningham ( see, Omrami v. Socrates, 227 A.D.2d 459; Glick Dolleck v. Tri-Pac Export Corp., 22 N.Y.2d 439). Accordingly, Pace was not entitled to summary judgment.
Bracken, J.P., Copertino, Joy and McGinity, JJ., concur.