Espinoza v. Diaz

280 A.D.2d 639, 720 N.Y.S.2d 841, 2001 N.Y. App. Div. LEXIS 1816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated March 29, 2000, which granted the motion of the defendants Oscar Diaz and Martha Rodriguez and the separate motion of the defendant Steven Schwartz for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

This action arises from a three-car collision in which a car driven by the defendant Tydell Gresham hit the rear of a car driven by the defendant Oscar Diaz and owned by the defendant Martha Rodriguez, and in which the plaintiff was a passenger. The vehicle driven by Diaz struck the vehicle driven by the defendant Steven Schwartz in the rear.

The defendants Schwartz, Diaz, and Rodriguez moved for summary judgment, presenting a prima facie case sufficient to establish that Diaz and Schwartz came to a complete stop, without contact, and that the vehicle operated by the defendant Gresham hit the Diaz vehicle. The plaintiff’s testimony at her examination before trial that the Schwartz vehicle suddenly stopped in traffic was insufficient to raise a triable issue of fact. Therefore, the Supreme Court properly granted summary judgment to the defendants Schwartz, Diaz, and Rodriguez inasmuch as the evidence fails to show that they acted negligently (see, Bando-Twomey v Richheimer, 229 AD2d 554; Barile v Lazzarini, 222 AD2d 635). Krausman, J. P., S. Miller, McGinity and Feuerstein, JJ., concur.