Osborne v. New York City Department of Parks & Recreation

Appellate Division of the Supreme Court of New York

Osborne v. New York City Department of Parks & Recreation

111 A.D.3d 465, 974 N.Y.S.2d 449

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 14, 2013

StatusPublished

This text of 111 A.D.3d 465 (Osborne v. New York City Department of Parks & Recreation) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Osborne v. New York City Department of Parks & Recreation, 111 A.D.3d 465, 974 N.Y.S.2d 449 (N.Y. Ct. App. 2013).

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Opinion

[466]*466Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 2, 2012, which, in an action for personal injuries sustained in a motor vehicle accident, denied plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff established his entitlement to judgment as a matter of law by showing that as he was stopped at a traffic light, his vehicle was struck from behind by defendants’ truck (see Agramonte v City of New York, 288 AD2d 75 [1st Dept 2001]).

In opposition, defendants raised a triable issue of fact as to whether an unanticipated slippery condition on the road caused the subject accident (see DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490 [2d Dept 2010]). There is also a question as to whether defendant driver’s truck suffered an unexpected brake failure, inasmuch as he testified that although he had checked the brakes in the morning and found them to be in good working order, the brakes failed to hold prior to the accident, and he was uncertain whether they had malfunctioned (see Jackson v Young, 226 AD2d 230, 231 [1st Dept 1996]; Hubert v Tripaldi, 307 AD2d 692, 694 [3d Dept 2003]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Gonzalez, PJ., Friedman, Sweeny, Moskowitz and Clark, JJ.

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[466]*466Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered November 2, 2012, which, in an action for personal injuries sustained in a motor vehicle accident, denied plaintiffs motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff established his entitlement to judgment as a matter of law by showing that as he was stopped at a traffic light, his vehicle was struck from behind by defendants’ truck (see Agramonte v City of New York, 288 AD2d 75 [1st Dept 2001]).

In opposition, defendants raised a triable issue of fact as to whether an unanticipated slippery condition on the road caused the subject accident (see DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490 [2d Dept 2010]). There is also a question as to whether defendant driver’s truck suffered an unexpected brake failure, inasmuch as he testified that although he had checked the brakes in the morning and found them to be in good working order, the brakes failed to hold prior to the accident, and he was uncertain whether they had malfunctioned (see Jackson v Young, 226 AD2d 230, 231 [1st Dept 1996]; Hubert v Tripaldi, 307 AD2d 692, 694 [3d Dept 2003]).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Gonzalez, PJ., Friedman, Sweeny, Moskowitz and Clark, JJ.

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111 A.D.3d 465, 974 N.Y.S.2d 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborne-v-new-york-city-department-of-parks-recreation-nyappdiv-2013.

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