Stuve v Baingan

Stuve v Baingan 2014 NY Slip Op 06074 Decided on September 10, 2014 Appellate Division, Second 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 September 10, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
HECTOR D. LASALLE, JJ.
2013-09597
(Index No. 34376/09)

[*1]Henry F. Stuve, Jr., plaintiff-respondent,

v

Francisco Baingan, defendant-respondent, Sandra S. Dozier, appellant.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (John B. Saville of counsel), for appellant.

Ray, Mitev & Associates, Miller Place, N.Y. (John Ray and Vesselin Mitev of counsel), for plaintiff-respondent.

Bello & Larkin, Hauppauge, N.Y. (Joseph J. Scheno of counsel), for defendant-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Sandra S. Dozier appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 5, 2013, which granted the plaintiff's motion for leave to reargue his opposition to that branch of her motion which was for summary judgment dismissing the complaint insofar as asserted against her, which had been granted in an order of the same court dated March 18, 2013, and, upon reargument, vacated the order dated March 18, 2013, and thereupon denied that branch of the motion.

ORDERED that the order dated August 5, 2013, is affirmed, with one bill of costs.

The Supreme Court providently exercised its discretion in granting the plaintiff leave to reargue because it had previously misapprehended the facts of the case (see CPLR 2221[d]). Upon reargument, the Supreme Court properly vacated its prior order and thereupon denied that branch of the motion of the defendant Sandra S. Dozier which was for summary judgment dismissing the complaint insofar as asserted against her. Dozier established her prima facie entitlement to judgment as a matter of law by showing that the subject accident occurred when the vehicle operated by the defendant Francisco Baingan crossed over the double-yellow line and entered the lane of oncoming traffic in which Dozier and the plaintiff were separately traveling (see Ferebee v Amaya, 83 AD3d 997, 997; Barbaruolo v DiFede, 73 AD3d 957, 957; Sullivan v Mandato, 58 AD3d 714, 714). However, in opposition, the plaintiff raised triable issues of fact as to whether Dozier's vehicle struck his vehicle and, if so, as to whether Dozier contributed to the accident by following the plaintiff too closely.

Accordingly, the Supreme Court properly granted the plaintiff's motion for reargument, upon reargument, vacated its prior order, and thereupon denied that branch of Dozier's motion which was for summary judgment dismissing the complaint insofar as asserted against her.

RIVERA, J.P., ROMAN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court