Pierre v. Olshever

• Decision Date: 30 March 2016
• Docket Number: 2015-04336, Index No. 600615/13.
• Citation: 137 A.D.3d 1243,29 N.Y.S.3d 392,2016 N.Y. Slip Op. 02342
• Parties: Rose–Land PIERRE, etc., plaintiff-respondent, v. David OLSHEVER, et al., defendants-respondents, Joseph Aiuto, appellant.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1243
29 N.Y.S.3d 392
2016 N.Y. Slip Op. 02342

Rose–Land PIERRE, etc., plaintiff-respondent,
v.
David OLSHEVER, et al., defendants-respondents,

Joseph Aiuto, appellant.

2015-04336, Index No. 600615/13.

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

March 30, 2016.

29 N.Y.S.3d 392

Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for appellant.

Litman & Litman, P.C., Woodbury, N.Y. (Jeffrey E. Litman of counsel), for plaintiff-respondent.

Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E. Ferrucci of counsel), for defendants-respondents.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, and SYLVIA O. HINDS–RADIX, JJ.

137 A.D.3d 1243

In an action, inter alia, to recover damages for wrongful death, the defendant Joseph Aiuto appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered March 29, 2015, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the plaintiff-respondent and the defendants-respondents appearing separately and filing separate briefs, and the motion of the defendant Joseph Aiuto for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is granted.

On March 10, 2011, at approximately 5:52 a.m., while driving westbound on a two-lane service road of the Long Island

29 N.Y.S.3d 393

Expressway near its intersection with Roslyn Road in East Hills, the defendant Joseph Aiuto lost control of his vehicle while allegedly trying to avoid debris in the roadway, at which point his vehicle left the roadway and struck a tree, causing the vehicle to flip onto its driver's side and come to rest in a portion of the right travel lane. Approximately 10 to 15 minutes later, after Aiuto...