Gaskill v. Sharpe

2024 NY Slip Op 06529

Opinion

Gaskill v Sharpe (2024 NY Slip Op 06529)

Gaskill v Sharpe

2024 NY Slip Op 06529

Decided on December 20, 2024

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2024
PRESENT: WHALEN, P.J., LINDLEY, DELCONTE, KEANE, AND HANNAH, JJ. (Filed Dec. 20, 2024.)
MOTION NO. (455/24) CA 23-01752.

[*1]ADAM GASKILL, PLAINTIFF-RESPONDENT,

v

CHRISTOPHER M. SHARPE, DEFENDANT-RESPONDENT, CAUSLEY TRUCKING, INC., AND JEFFREY KEITH MADDEN, DEFENDANTS-APPELLANTS.

MEMORANDUM AND ORDER

Motion for reargument granted to the extent that, upon reargument, the memorandum and order entered July 26, 2024 (229 AD3d 1258 [4th Dept 2024]) is amended by deleting the third sentence of the third paragraph of the memorandum and substituting the following sentence:

"Although defendants established that Sharpe was negligent, a triable issue of fact would exist whether they were also negligent if, as plaintiff alleges, the manner in which the truck was parked at the time contributed to the accident (cf. Gerrity v Muthana, 28 AD3d 1063, 1064 [4th Dept 2006], affd 7 NY3d 834 [2006])."; by deleting the fourth sentence of the third paragraph of the memorandum; and by adding the following sentence as the final sentence of the third paragraph of the memorandum:

"The court therefore did not abuse its discretion in denying defendants' summary judgment motion as premature (see Cardone v Poidamani, 73 AD3d 828, 828 [2d Dept 2010]; see generally CPLR 3212 [f])."