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Question of Fact About Sequence of Rear-End Collisions Precluded Summary Judgment

The Second Department determined a question of fact had been raised about whether the middle driver in a three-car rear-end collision was negligent. Although the middle-car driver alleged she was struck from behind and pushed into the lead car, the third-car driver alleged the middle car struck the lead car before he struck the middle car:

Supreme Court erred in granting the motions of the plaintiff [lead car driver] and [the middle-car driver] for summary judgment. Based on the plaintiff’s account of the accident, those movants established, prima facie, their freedom from comparative fault and that [third-car driver] was negligent based on the presumption of negligence that arises from a rear-end collision with a stopped or stopping vehicle … . However, [third-car driver’s] affidavit, which recited that his vehicle only struck the [middle] vehicle after the [middle] vehicle had already collided with the lead vehicle, raised triable issues of fact as to the sequence of the collisions, whether [the middle-car driver] was at fault, and the proximate cause of the plaintiff’s alleged injuries …. . Gavrilova v Stark, 2015 NY Slip Op 05153, 2nd Dept 6-17-15

 

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ASSIGNMENT OF AN INTEREST IN A JUDGMENT WAS VALID EVEN THOUGH THE PARTY WHO PAID THE ASSIGNOR HAD NOT BEEN NOTIFIED OF THE ASSIGNMENT, PAYMENT MADE IN GOOD FAITH TO THE ASSIGNOR TREATED AS IF MADE TO THE ASSIGNEE (SECOND DEPT).
PLAINTIFF’S AFFIDAVIT DID NOT STATE IT WAS BASED ON FIRST-HAND KNOWLEDGE AND THE UNCERTIFIED POLICE REPORT WAS INADMISSIBLE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS PROPERTY-DAMAGE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO DISMISS ON SPEEDY TRIAL GROUNDS; THE PROSECUTION WAS NOT STARTED UNTIL 22 MONTHS AFTER THE INCIDENT; MATTER REMITTED (SECOND DEPT).
DEFENDANT ATTORNEY’S AFFIDAVIT IN SUPPORT OF ADMITTING LAW-FIRM BUSINESS RECORDS DID NOT INDICATE THE AFFIANT WAS FAMILIAR WITH THE RECORD KEEPING PRACTICES AND PROCEDURES OF THE LAW FIRM; THEREFORE THE COURT SHOULD NOT HAVE CONSIDERED THE RECORDS IN THE SUMMARY JUDGMENT PROCEEDINGS (SECOND DEPT).
THE “BUILDING” DEFENDANTS AND THE COMPANY WHICH INSTALLED AND MAINTAINED THE AIR CONDITIONING UNIT WHICH ALLEGEDLY LEAKED WATER ON THE FLOOR WERE NOT ENTITLED TO SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE; THE LANDLORD DID NOT DEMONSTRATE IT WAS AN OUT-OF-POSSESSION LANDLORD; THE “BUILDING” DEFENDANTS DID NOT DEMONSTRATE THEY DID NOT HAVE ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE CONDITION; AND THE COMPANY WHICH INSTALLED AND MAINTAINED THE AIR CONDITIONER DID NOT SHOW IT DID NOT LAUNCH AND INSTRUMENT OF HARM (SECOND DEPT).
ADJACENT PROPERTY OWNERS DID NOT HAVE STANDING TO CHALLENGE VARIANCE, THE CHALLENGE WAS NOT WITHIN THE ZONE OF INTEREST OF THE RELEVANT STATUTE.
CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT).
“Due Diligence” Demonstrated—“Nail and Mail” Service Appropriate

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