        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

785
CA 14-01218
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, AND DEJOSEPH, JJ.


DEBORA KALBFLIESH AND KENNETH KALBFLIESH, JR.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ANDREA MCCANN, JOHN MCCANN,
DEFENDANTS-RESPONDENTS,
JOSEPH A. MOSES AND SMART RIDE LTD.,
DEFENDANTS-APPELLANTS.
(APPEAL NO. 1.)


LIPPMAN O’CONNOR, BUFFALO (GERARD E. O’CONNOR OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

CAMPBELL & SHELTON, LLP, EDEN, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO
(EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.

HAGELIN KENT, LLC, BUFFALO (BENJAMIN R. WOLF OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Niagara County (Mark
A. Montour, J.), entered March 3, 2014 in a personal injury action.
The order denied the motion of defendants Joseph A. Moses and Smart
Ride Ltd. for summary judgment dismissing the complaint and the cross
claim against them.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint and cross claim against defendants Joseph A. Moses
and Smart Ride Ltd. are dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries allegedly sustained by Debora Kalbfliesh (plaintiff) when she
was a passenger in a van driven by defendant Joseph A. Moses and owned
by defendant Smart Ride Ltd. (collectively, defendants) that was rear-
ended by a vehicle driven by defendant Andrea McCann (McCann) and
owned by defendant John McCann (collectively, McCann defendants). In
appeal No. 1, defendants appeal from an order denying their motion for
summary judgment dismissing the complaint and the McCann defendants’
cross claim against them. In appeal No. 2, defendants appeal from an
order denying their motion seeking to settle the record on appeal to
exclude a letter to Supreme Court from plaintiffs’ counsel.
Addressing first the order in appeal No. 2, we perceive no abuse of
discretion in the court’s settlement of the record (see Matter of
                                 -2-                           785
                                                         CA 14-01218

Albright [appeal No. 2], 87 AD3d 1294, 1295).

     With respect to the order in appeal No. 1, however, we agree with
defendants that the court erred in denying their motion. Defendants
met their initial burden of establishing that McCann’s negligence was
the sole proximate cause of the accident by submitting evidence that
Moses was lawfully slowing to make a right-hand turn, and that the
rear-end collision resulted from McCann’s admitted failure to pay
attention to the road as she retrieved her phone from the floor of her
vehicle after it fell (see Giangrasso v Callahan, 87 AD3d 521, 522;
Newton v Perugini, 16 AD3d 1087, 1088-1089; see also Le Grand v
Silberstein, 123 AD3d 773, 775). In opposition to the motion,
plaintiffs and the McCann defendants failed to raise a triable issue
of fact whether any negligence attributable to Moses contributed to
the accident (see Le Grand, 123 AD3d at 775; Newton, 16 AD3d at 1089;
see generally Prine v Santee, 21 NY3d 923, 925). Any defect in the
right rear turn signal of defendants’ van was not a proximate cause of
the accident in light of McCann’s testimony that she did not see the
van until it was too late to avoid it (see Filippazzo v Santiago, 277
AD2d 419, 420; see generally Green v Mower, 302 AD2d 1005, 1006, affd
100 NY2d 529; Greene v Sivret, 43 AD3d 1328, 1328-1329). We likewise
conclude that, under the circumstances of this case, the other alleged
acts of negligence by Moses, including any failure to wear corrective
eyewear that was required as a restriction on his license (see Vehicle
and Traffic Law § 509 [3]), did not contribute to the accident as a
matter of law (see Gray v Delaware Equip. Servs., Inc., 56 AD3d 1006,
1007; Dance v Town of Southampton, 95 AD2d 442, 445-446; cf. Dalal v
City of New York, 262 AD2d 596, 598).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
