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

1383
CA 15-00880
PRESENT: SCUDDER, P.J., CENTRA, CARNI, VALENTINO, AND DEJOSEPH, JJ.


ELDIN KOVACIC, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

RALPH DELMONT, DEFENDANT-APPELLANT,
CAITLIN BUTLER AND DAVID P. BUTLER,
DEFENDANTS-RESPONDENTS.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (MARK A. FORDEN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

FEROLETO LAW, BUFFALO (JOEL P. FEROLETO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.

SCHNITTER CICCARELLI MILLS, PLLC, EAST AMHERST (BRITTANY A. NASRADINAJ
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered November 12, 2014. The order denied
the motion of defendant Ralph Delmont for summary judgment dismissing
the complaint against him.

     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 against defendant Ralph Delmont is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when the vehicle operated by Ralph Delmont
(defendant), in which plaintiff was a passenger, was rear-ended by a
vehicle operated by defendant Caitlin Butler. We agree with defendant
that Supreme Court erred in denying his motion for summary judgment
dismissing the complaint against him. Defendant met his initial
burden by establishing that he had brought his vehicle to a complete
stop when it was rear-ended by the vehicle operated by Caitlin Butler
(see Zielinski v Van Pelt [appeal No. 2], 9 AD3d 874, 875-876; Ruzycki
v Baker, 301 AD2d 48, 50). In opposition, plaintiff and the Butler
defendants failed to raise a triable issue of fact (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to their
contentions, plaintiff consistently testified at his deposition that
defendant had brought his vehicle to a complete stop at the time of
the collision, and there are no issues of witness credibility that
would preclude summary judgment. “ ‘The papers submitted by the
plaintiff [and the Butler defendants] fail to show any [conduct by
defendant] from which it could be inferred that any negligence on
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                                                         CA 15-00880

[defendant’s] part caused the . . . accident’ ” (Zielinski, 9 AD3d at
875-876; see Nozine v Anurag, 38 AD3d 631, 631-632).




Entered:   December 23, 2015                   Frances E. Cafarell
                                               Clerk of the Court
