Campany v. Prall

12 A.D.3d 1097, 784 N.Y.S.2d 778, 2004 N.Y. App. Div. LEXIS 13831

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered November 6, 2003. The order denied the motion of defendant Timothy W. Fadden for summary judgment dismissing the complaint and cross claim against him.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint and the cross claim against defendant Timothy W. Fadden are dismissed.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Michael J. Campany (plaintiff) when the vehicle that he was driving was rear-ended by a vehicle driven by defendant Peter V Prall, Jr. According to plaintiff, he observed a vehicle driven by Timothy W Fadden (defendant) approaching an intersection at a high rate of speed, and plaintiff did not believe that defendant would stop at the intersection. Plaintiff therefore stopped his own vehicle suddenly, allegedly in order to prevent a collision with defendant, and was struck by Prall. Supreme Court erred in denying the motion of defendant for summary judgment seeking dismissal of the complaint and cross claim against him. Defendant established his entitlement to judgment as a matter of law by establishing that he was neither negligent nor reckless in the operation of his vehicle (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and neither plaintiffs nor Prall raised an issue of fact in response thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present—Pigott, Jr., PJ., Pine, Scudder, Martoche and Lawton, JJ.