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

808
CA 11-01863
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


MARCIA G. BRYNDLE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOSEPH J. KNAB, DEFENDANT-APPELLANT,
AND THOMAS E. KNAPP, DEFENDANT-RESPONDENT.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (DANIEL J. GURASCI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (APRIL J. ORLOWSKI OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered April 18, 2011 in a personal injury action.
The order, among other things, granted the motion of defendant Thomas
E. Knapp for summary judgment seeking dismissal of the complaint
against him.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries she allegedly sustained when the vehicle driven by defendant
Joseph J. Knab rear-ended the vehicle driven by plaintiff, causing
plaintiff’s vehicle to make contact with the vehicle driven by
defendant Thomas E. Knapp. At the time of the accident, plaintiff was
attempting to turn into a driveway that served as the entrance and
exit to a parking lot. Knapp was attempting to exit the parking lot
using the same driveway. According to plaintiff, she was unable to
turn into the driveway because Knapp’s vehicle was in the center of
the driveway, whereupon the vehicle driven by Knab rear-ended
plaintiff’s vehicle while plaintiff was either coasting or had fully
stopped.

     We conclude that Supreme Court properly granted the motion of
Knapp for summary judgment seeking, inter alia, dismissal of the
complaint against him, but our reasoning differs from that of the
court. Knapp established as a matter of law that he was not
negligent, and both plaintiff and Knab failed to raise a triable issue
of fact (see generally Zuckerman v City of New York, 49 NY2d 557,
                                 -2-                           808
                                                         CA 11-01863

562). “The fact that [Knapp] positioned his motor vehicle in the
middle of the driveway does not raise a triable issue of fact as to
whether the accident was caused by negligence on his part” (Bous v
Fahey, 250 AD2d 638).




Entered:   June 29, 2012                        Frances E. Cafarell
                                                Clerk of the Court
