Aaron v Fish-Bones Towing, Inc.

Aaron v Fish-Bones Towing, Inc. 2011 NY Slip Op 08816 Decided on December 8, 2011 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 December 8, 2011
Tom, J.P., Moskowitz, Richter, Abdus-Salaam, Román, JJ.
6240 103685/10

[*1]Peter Aaron, et al., Plaintiffs-Respondents,

v

Fish-Bones Towing, Inc., et al., Defendants, The Doe Fund, Inc., Defendant-Appellant.




Smith Mazure Director Wilkins Young & Yagerman, P.C.,
New York (Marcia K. Raicus of counsel), for appellant.
Kramer & Dunleavy, L.L.P., New York (Lenore Kramer of
counsel), for respondents.

Order, Supreme Court, New York County (George J. Silver, J.), entered January 20, 2011, which granted plaintiffs' motion for summary judgment on the issue of liability as against all defendants, unanimously affirmed, without costs.

Summary judgment was not premature, where plaintiff Peter Aaron was allegedly injured when, as he was locking his bicycle to a signpost on a sidewalk, he was run over by an unoccupied moving van, owned by defendant The Doe Fund, Inc., that broke free from a tow truck owned by defendant Fish-Bones Towing and operated by defendant Gonzalez. Doe Fund's claimed need for discovery as to the injured plaintiff's alleged negligence is unsupported by facts suggesting that relevant evidence might be revealed; thus, it is "insufficient to forestall summary judgment" (2386 Creston Ave. Realty, LLC v M-P-M Mgt. Corp., 58 AD3d 158, 162 [2008], lv denied 11 NY3d 716 [2009]). Indeed, Doe Fund has not shown how a reasonable jury could find that plaintiff's injuries are a reasonably foreseeable consequence of locking up a bicycle to a signpost on a sidewalk (cf. Tannous v MTA Bus Co., 83 AD3d 584 [2011]; White v Diaz, 49 AD3d 134, 139-140 [2008]).

As was made clear by the court's non-appealed, simultaneously issued order that granted Doe Fund's motion for summary judgment on its cross claim against its co-defendants for common-law indemnification, Doe Fund's liability for plaintiff's injuries was purely vicarious under Vehicle and Traffic Law [*2]
§ 388(1) (see generally Them-Tuck Chung v Pinto, 26 AD3d 428, 429 [2006]). Accordingly, the court correctly granted plaintiffs' motion as against Doe Fund.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 8, 2011

CLERK