Barry v. Pepsi-Cola Bottling Co. of New York, Inc.

Appellate Division of the Supreme Court of New York

Barry v. Pepsi-Cola Bottling Co. of New York, Inc.

130 A.D.3d 500, 11 N.Y.S.3d 857

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

DecidedJuly 9, 2015

Docket15685 309625/12

StatusPublished

Cited by2 cases

This text of 130 A.D.3d 500 (Barry v. Pepsi-Cola Bottling Co. of New York, Inc.) 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.

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Barry v. Pepsi-Cola Bottling Co. of New York, Inc., 130 A.D.3d 500, 11 N.Y.S.3d 857 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 13, 2014, which denied the motion of defendant Pepsi-Cola Bottling Company of New York, Inc. for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this rear-end collision case, even assuming that the Pepsi vehicle, hit from behind, was illegally double-parked, that fact, standing alone “does not automatically establish that such double-parking was the proximate cause of the accident” (Cervera v Moran, 122 AD3d 482, 483 [1st Dept 2014] [internal quotation marks omitted]). Here, the record shows that the double-parked vehicle, given the road conditions at the time of the accident, namely, the favorable weather, the time of day, and the relatively minimal amount of traffic on the road at the time, “merely furnished the condition or occasion for the occurrence of the event but was not one of its causes” (id.; see Pagan v Ouattara, 115 AD3d 605 [1st Dept 2014]). Plaintiffs proffered excuse for the accident, that sunlight temporary blinded the driver of the rear vehicle, does not constitute a nonnegligent explanation for the rear-end collision (see Agramonte v City of New York, 288 AD2d 75, 76 [1st Dept 2001]). Concur — Mazzarelli, J.P., Sweeny, Saxe, Richter and Manzanet-Daniels, JJ.

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Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 13, 2014, which denied the motion of defendant Pepsi-Cola Bottling Company of New York, Inc. for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this rear-end collision case, even assuming that the Pepsi vehicle, hit from behind, was illegally double-parked, that fact, standing alone “does not automatically establish that such double-parking was the proximate cause of the accident” (Cervera v Moran, 122 AD3d 482, 483 [1st Dept 2014] [internal quotation marks omitted]). Here, the record shows that the double-parked vehicle, given the road conditions at the time of the accident, namely, the favorable weather, the time of day, and the relatively minimal amount of traffic on the road at the time, “merely furnished the condition or occasion for the occurrence of the event but was not one of its causes” (id.; see Pagan v Ouattara, 115 AD3d 605 [1st Dept 2014]). Plaintiffs proffered excuse for the accident, that sunlight temporary blinded the driver of the rear vehicle, does not constitute a nonnegligent explanation for the rear-end collision (see Agramonte v City of New York, 288 AD2d 75, 76 [1st Dept 2001]). Concur — Mazzarelli, J.P., Sweeny, Saxe, Richter and Manzanet-Daniels, JJ.

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Bluebook (online)

130 A.D.3d 500, 11 N.Y.S.3d 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barry-v-pepsi-cola-bottling-co-of-new-york-inc-nyappdiv-2015.

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