Barry v Pepsi-Cola Bottling Co. of N.Y., Inc.

Barry v Pepsi-Cola Bottling Co. of N.Y., Inc. 2015 NY Slip Op 06034 Decided on July 9, 2015 Appellate Division, First 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 July 9, 2015
Mazzarelli, J.P., Sweeny, Saxe, Richter, Manzanet-Daniels, JJ.
15685 309625/12

[*1] Alfred Barry, Plaintiff-Respondent,

v

Pepsi-Cola Bottling Company of New York, Inc., Defendant-Appellant, "John Doe", etc., et al., Defendants.

Law Offices of Christopher P. Di Giulio, P.C., New York (William Thymius of counsel), for appellant.

Friedman & Simon, LLP, Jericho (Roger L. Simon of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 13, 2014, which denied the motion of defendant Pepsi-Cola Bottling Company of New York, Inc. for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

In this rear-end collision case, even assuming that the Pepsi vehicle, hit from behind, was illegally double-parked, that fact, standing alone "does not automatically establish that such double-parking was the proximate cause of the accident" (Cervera v Moran, 122 AD3d 482, 483 [1st Dept 2014] [internal quotation marks omitted]). Here, the record shows that the double-parked vehicle, given the road conditions at the time of the accident, namely, the favorable weather, the time of day, and the relatively minimal amount of traffic on the road at the time, "merely furnished the condition or occasion for the occurrence of the event but was not one of its causes" (id.; see Pagan v Ouattara, 115 AD3d 605 [1st Dept 2014]). Plaintiff's proffered excuse for the accident, that sunlight temporary blinded the driver of the rear vehicle, does not constitute a nonnegligent explanation for the rear-end collision (see Agramonte v City of New York, 288 AD2d 75, 76 [1st Dept 2001]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 9, 2015

CLERK