Canceleno v. Johnston

• Decision Date: 09 August 1999
• Docket Number: No. 2,No. 1,No. 3,1,2,3
• Citation: 694 N.Y.S.2d 125
• Parties: Joseph Gerald CANCELENO, etc., et al., appellants, v. William J. JOHNSTON, et al., respondents, et al., defendants. (Action) William J. Johnston, et al., plaintiffs, v. Dina Canceleno, et al., defendants. (Action) Dina Canceleno, appellant, v. William J. Johnston, et al., respondents. (Action)
• Court: New York Supreme Court — Appellate Division

Page 125

694 N.Y.S.2d 125

Joseph Gerald CANCELENO, etc., et al., appellants, v. William J. JOHNSTON, et al., respondents, et al., defendants. (Action No. 1)

William J. Johnston, et al., plaintiffs, v. Dina Canceleno, et al., defendants. (Action No. 2)

Dina Canceleno, appellant, v. William J. Johnston, et al., respondents. (Action No. 3)

Supreme Court, Appellate Division, Second Department, New York.

Aug. 9, 1999.

Kathryn S. Tusa, Smithtown, N.Y., for appellants in Action No. 1.

Thomas Nolan, Riverhead, N.Y., for appellant in Action No. 3.

Bartlett, McDonough, Bastone & Monahan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., of counsel), for respondents in Actions No. 1 and 3.

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, WILLIAM C. THOMPSON and THOMAS R. SULLIVAN, JJ.

MEMORANDUM BY THE COURT.

In three related actions to recover damages for wrongful death and personal injuries which were joined for trial, the plaintiffs in Actions No. 1 and 3 separately appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 15, 1998, which granted the motion of the defendants William J. Johnston and William J. Johnston Plumbing and Heating, for summary judgment dismissing those complaints and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

The respondents' submissions established their prima facie entitlement to judgment as a matter of law dismissing the complaints and all cross claims in Actions No. 1 and 3 insofar as asserted against them (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). The respondents demonstrated that William J. Johnston was not negligent in failing to avoid the vehicle driven by the appellant Dina Canceleno as it executed a left turn across the oncoming lanes of traffic in which Johnston was lawfully traveling (see, Smalley v. McCarthy, 254 A.D.2d 478, 679 N.Y.S.2d 406; Williams v. Econ, 221 A.D.2d 429, 633 N.Y.S.2d 392; Murphy v. Spickler, 224 A.D.2d 814, 638 N.Y.S.2d 188; Fuller v. Blackbird, 211 A.D.2d 886, 621 N.Y.S.2d 708; Moller v. Lieber, 156 A.D.2d 434, 435, 548 N.Y.S.2d 552; Viegas v. Esposito, 135 A.D.2d 708, 522 N.Y.S.2d 608).

Since the appellants' opposing submissions failed to create material questions of fact with respect to Johnston's alleged culpability (Fuller v. Blackbird, supra; Williams v. Econ, supra; Viegas...