Mittermeier v DeLeonardis

[*1] Mittermeier v DeLeonardis 2007 NY Slip Op 51877(U) [17 Misc 3d 127(A)] Decided on October 4, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 4, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P., SCHOENFELD, HEITLER, JJ
570271/07.

John Mittermeier, Plaintiff-Respondent,

against

Ralph DeLeonardis, Defendant-Appellant, - and - Jamal Johnson, Defendant.

Defendant Ralph DeLeonardis appeals from that portion of an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered November 22, 2005, which granted plaintiff's motion for summary judgment on the issue of liability.

Per Curiam.

Order (Raul Cruz, J.) entered November 22, 2005, modified to deny plaintiff's motion for summary judgment on the issue of liability as against defendant DeLeonardis; as so modified, affirmed, with $10 costs.

In this personal injury action arising out of a three-car collision, plaintiff's motion for summary judgment as against defendant DeLeonardis on the issue of liability should have been denied. The conflicting testimony as to whether DeLeonardis' vehicle was propelled into plaintiff's stopped vehicle when his own vehicle was hit in the rear by defendant Johnson's vehicle raised an issue for the factfinder to resolve (see Algarin v Reich, 291 AD2d 308 [2002]).

In view of DeLeonardis' admission that plaintiff's vehicle was stopped when he rear-ended it, and the undisputed deposition testimony that traffic conditions were heavy in the vicinity of the accident, there are no issues of fact as to plaintiff's fault in connection with the accident.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 4, 2007