Fersko v. Haynes
Opinion
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Bureau Thomas J.K. Smith, State Reporter
Fersko v Haynes
2026 NY Slip Op 04402
July 15, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Sherry Fersko, plaintiff,
v
Williamay Haynes, et al., defendants, Merido W. Rodriguez, respondent, Robert P. Kassar, appellant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 15, 2026
2024-07070, (Index No. 503236/15)
Colleen D. Duffy, J.P.
Paul Wooten
Laurence L. Love
Phillip Hom, JJ.
Morris Duffy Alonso Faley & Pitcoff, New York, NY, for appellant.
DECISION & ORDER
In a consolidated action to recover damages for personal injuries, the defendant Robert P. Kassar appeals from an order of the Supreme Court, Kings County (Aaron D. Maslow, J.), dated May 23, 2024. The order, insofar as appealed from, denied that defendant's cross-motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross-motion of the defendant Robert P. Kassar for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him is granted.
The plaintiff commenced separate actions, which were later consolidated, against the defendants Merido W. Rodriguez and Robert P. Kassar, among others, to recover damages for personal injuries the plaintiff allegedly sustained in September 2014, when a vehicle driven by Rodriguez in which the plaintiff was a passenger collided with a vehicle driven by Kassar. As is relevant to this appeal, Kassar cross-moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him. Rodriguez opposed the cross-motion, but the plaintiff did not. In an order dated May 23, 2024, the Supreme Court, inter alia, denied the cross-motion.
"'There can be more than one proximate cause of an accident, and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident'" (Trinidad v Llapa, 231 AD3d 1183, 1183 [internal quotation marks omitted], quoting Napier v Gleberman, 212 AD3d 829, 830).
Here, contrary to the determination of the Supreme Court, Kassar established his prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against him by demonstrating that his vehicle was struck in the rear when it was stopped in traffic and that he was not at fault in the happening of the collision (see e.g. Laureano v EAN Holdings, LLC, 225 AD3d 754, 756; Gomez v Pechman, 223 AD3d 711, 712). In opposition, Rodriguez failed to raise a triable issue of fact. Even viewing the evidence proffered by Rodriguez in the light most favorable to him, Kassar was not at fault in the happening of the collision (see Byrne v Calogero, 96 AD3d 704, 705-706; see also Waide v ARI Fleet, LT, 143 AD3d 975, 975-976).
Accordingly, the Supreme Court should have granted Kassar's cross-motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him.
DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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