Dawkins v. Stone

14 A.D.3d 588, 787 N.Y.S.2d 884, 2005 N.Y. App. Div. LEXIS 543

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Otis Stone appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated May 14, 2004, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

After the plaintiff placed this matter on the trial calendar, the appellant timely moved for summary judgment dismissing the complaint insofar as asserted against him. In support, he offered the deposition testimony of the plaintiff. This testimony was sufficient to make out a prima facie case that the accident was caused by the negligence of the driver of a vehicle which collided with the back of the vehicle owned by the appellant and then left the scene without stopping (see National Interstate v A.J. Murphy Co., Inc., 9 AD3d 714 [2004]). In response, the plaintiff, a passenger in the vehicle owned by the appellant, failed to show the existence of a triable issue of fact as to whether there was any negligence on the part of the appellant or the driver of the vehicle owned by him. Accordingly, summary judgment should have been granted to the appellant (see National Interstate v A.J. Murphy Co., Inc., supra; Drake v Drakoulis, 304 AD2d 522 [2003]; Leandre v Sharperson, 96 AD2d 883 [1983]; see generally Alvarez v Prospect Hosp., 68 [1986]). Florio, J.P., Cozier, Krausman and Mastro, JJ., concur.