King v. Dalton

• Decision Date: 06 December 1999
• Citation: 699 N.Y.S.2d 465
• Parties: 1999 N.Y. Slip Op. 10,419 Sirene KING, et al., plaintiffs, v. Lola DALTON, appellant, CDS Mestel Construction Corp., et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 465

699 N.Y.S.2d 465

1999 N.Y. Slip Op. 10,419

Sirene KING, et al., plaintiffs, v. Lola DALTON, appellant, CDS Mestel Construction Corp., et al., respondents.

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

Dec. 6, 1999.

Bilello & Walisever, Woodbury, N.Y. (John A. Asta of counsel), for appellant.

Squires, Cordrey & Noble, New York, N.Y. (Stephen M. Knudsen of counsel), for respondents.

THOMAS R. SULLIVAN, J.P., DANIEL W. JOY, GABRIEL M. KRAUSMAN and DANIEL F. LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant Lola Dalton appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated November 20, 1998, which denied her motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint and all cross claims insofar as asserted against the appellant are dismissed, and the action against the remaining defendants is severed.

The admission of the defendant Rafael Landin that his truck entered the intersection where the accident occurred while the light was red established, prima facie, that he was solely at fault for the accident (see, Diasparra v. Smith, 253 A.D.2d 840, 678 N.Y.S.2d 373; Guerriero v. Timberlake, 254 A.D.2d 393, 678 N.Y.S.2d 739; Salenius v. Lisbon, 217 A.D.2d 692, 630 N.Y.S.2d 531). The opposition submitted by Landin and the defendant CDS Mestel Construction Corp., which was the only opposition submitted on the motion, failed to raise any triable issue of fact as to whether the appellant had been negligent in failing to exercise reasonable care in entering the intersection, or in avoiding the collision (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Diasparra v. Smith, supra; Delasoudas v. Koudellou, 236 A.D.2d 581, 654 N.Y.S.2d 659). Accordingly, the Supreme Court erred in denying the appellant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.