Campbell v Mincello

Campbell v Mincello 2020 NY Slip Op 03179 Decided on June 4, 2020 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 June 4, 2020
Friedman, J.P., Kapnick, Kern, Singh, González, JJ.
11592 20153/17E

[*1] Chester Campbell, Plaintiff-Respondent,

v

Vincent Mincello, et al., Defendants, Pauline Cardillo, Defendant-Appellant.

Collins, Fitzpatrick & Schoene, LLP, White Plains (Ralph Schoene of counsel), for appellant.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered October 1, 2018, which, to the extent appealed from as limited by the briefs, upon reargument and renewal, granted plaintiff's motion for partial summary judgment on the issue of liability as against defendant Pauline Cardillo, unanimously reversed, on the law, without costs, and the motion denied.

Even assuming that plaintiff established prima facie that the vehicle in which he was a passenger was rear-ended by defendant Mincello's vehicle, which was then rear-ended by defendant Cardillo, Cardillo raised a triable issue of fact as to her negligence through her affidavit averring that she was at a complete stop when her own vehicle was struck in the rear and propelled into the vehicle in front of her (see Arellano v

Richards, 162 AD3d 967 [2d Dept 2018]; Gustke v Nickerson, 159 AD3d 1573, 1574 [4th Dept 2018], lv dismissed in part, denied in part 32 NY3d 1048 [2018]). That plaintiff, as a passenger in the vehicle in front of defendant Mincello, may have been free of comparative negligence does not warrant a different outcome, as an innocent passenger must still establish a defendant driver's liability under traditional principles of tort liability in order to prevail on the issue of liability against that driver (see Oluwatayo v Dulinayan, 142 AD3d 113, 117-120 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 4, 2020

CLERK