

Torres v Kalmar (2016 NY Slip Op 00879)





Torres v Kalmar


2016 NY Slip Op 00879


Decided on February 9, 2016


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 February 9, 2016

Mazzarelli, J.P., Moskowitz, Richter, Gische, JJ.


153 301796/12

[*1]Joann R. Torres, Plaintiff-Respondent,
vBenedek L. Kalmar, et al., Defendants-Appellants, Gelco Corp., Defendant.


Harris, King, Fodera & Correia, New York (Kevin J. McGinnis of counsel), for appellants.
Law Offices of Ryan Goldstein, PLLC, Bronx (Ryan S. Goldstein of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered April 15, 2015, which denied the motion of defendants Benedek L. Kalmar and Jones Lang LaSalle, Inc. for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff's contention that defendants have improperly moved a second time for summary judgment relief without requisite leave of the court is unavailing. The court had denied defendants' original summary judgment motion as "premature," "with leave to renew," pending completion of discovery (see e.g. Maggio v 24 West 57 APF, LLC, AD3d , 2015 NY Slip Op 09604, *4 [1st Dept 2015]; Fernandez v Elemam, 25 AD3d 752, 753 [2d Dept 2006]).
As to the merits of the motion, defendants established their entitlement to judgment as a matter of law by submitting evidence showing that plaintiff's vehicle struck the rear of the van defendant Kalmar was driving as he waited at a red light (see Padilla v Zulu Servs., Inc., 132 AD3d 522 [1st Dept 2015]). Defendant driver also testified that two uninvolved motor vehicles were directly ahead of his van, in the same traffic lane, and that such vehicles had indicated they would be making a lefthand turn once the light changed to green.
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's deposition testimony, together with sworn statements of an alleged witness to the accident, all to the effect that defendants' van had suddenly stopped at the subject intersection despite a green light in its favor, and that traffic had been moving along at approximately 30 miles per hour, with plaintiff allowing an eight-foot buffer between her vehicle and the van just prior to the accident, failed to [*2]provide a nonnegligent explanation for the accident (see Dicturel v Dukureh, 71 AD3d 558 [1st Dept 2010]; Soto-Maroquin v Mellet, 63 AD3d 449 [1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 9, 2016
CLERK


