Algarin v. Reich

Appellate Division of the Supreme Court of New York

Algarin v. Reich

291 A.D.2d 308, 738 N.Y.S.2d 51, 2002 N.Y. App. Div. LEXIS 1769

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 21, 2002

StatusPublished

This text of 291 A.D.2d 308 (Algarin v. Reich) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Algarin v. Reich, 291 A.D.2d 308, 738 N.Y.S.2d 51, 2002 N.Y. App. Div. LEXIS 1769 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about January 16, 2001, which, insofar as appealed from, granted the motion of defendants Mark A. Reich and Barbara O. Hirsch for summary judgment and dismissed the complaint against them, unanimously reversed, on the law, without costs, the motion for summary judgment denied and the complaint reinstated as against defendants Mark A. Reich and Barbara O. Hirsch.

The Supreme Court erred in concluding that plaintiffs failed to demonstrate any triable issues of fact as to the negligence of defendants Mark A. Reich and Barbara O. Hirsch in this chain reaction rear-end collision (cf., Johnson v Phillips, 261 AD2d 269; Galante v BMW Fin. Servs., 223 AD2d 421). The deposition testimony and affidavits of plaintiffs Rafael Algarin and Hector Algarin, driver and passenger respectively, that they felt a strong impact followed by a second weaker impact sufficiently place at issue defendants’ denial of negligence. Such evidence tends to demonstrate that defendants’ vehicle had already struck plaintiffs’ vehicle prior to the second impact, thus precluding summary relief (see, Zuckerman v City of New York, 49 NY2d 557, 562). The contention of defendants, Reich and Hirsch, to wit, that the double impact resulted from a rear-end collision with another vehicle which then forced their vehicle into the one operated by plaintiff Rafael Algarin, is an issue for the fact finder to resolve. Concur — Williams, J.P., Ellerin, Lerner, Rubin and Marlow, JJ.

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—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about January 16, 2001, which, insofar as appealed from, granted the motion of defendants Mark A. Reich and Barbara O. Hirsch for summary judgment and dismissed the complaint against them, unanimously reversed, on the law, without costs, the motion for summary judgment denied and the complaint reinstated as against defendants Mark A. Reich and Barbara O. Hirsch.

The Supreme Court erred in concluding that plaintiffs failed to demonstrate any triable issues of fact as to the negligence of defendants Mark A. Reich and Barbara O. Hirsch in this chain reaction rear-end collision (cf., Johnson v Phillips, 261 AD2d 269; Galante v BMW Fin. Servs., 223 AD2d 421). The deposition testimony and affidavits of plaintiffs Rafael Algarin and Hector Algarin, driver and passenger respectively, that they felt a strong impact followed by a second weaker impact sufficiently place at issue defendants’ denial of negligence. Such evidence tends to demonstrate that defendants’ vehicle had already struck plaintiffs’ vehicle prior to the second impact, thus precluding summary relief (see, Zuckerman v City of New York, 49 NY2d 557, 562). The contention of defendants, Reich and Hirsch, to wit, that the double impact resulted from a rear-end collision with another vehicle which then forced their vehicle into the one operated by plaintiff Rafael Algarin, is an issue for the fact finder to resolve. Concur — Williams, J.P., Ellerin, Lerner, Rubin and Marlow, JJ.

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Bluebook (online)

291 A.D.2d 308, 738 N.Y.S.2d 51, 2002 N.Y. App. Div. LEXIS 1769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/algarin-v-reich-nyappdiv-2002.

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