Reitz v. Seagate Trucking, Inc.

• Decision Date: 23 March 2010
• Citation: 71 A.D.3d 975,898 N.Y.S.2d 173
• Parties: William REITZ, plaintiff/counterclaim defendant-respondent, Lois Reitz, plaintiff-respondent, v. SEAGATE TRUCKING, INC., et al., defendants/counterclaim plaintiffs-appellants.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 173
71 A.D.3d 975

William REITZ, plaintiff/counterclaim defendant-respondent,
Lois Reitz, plaintiff-respondent,
v.
SEAGATE TRUCKING, INC., et al., defendants/counterclaim plaintiffs-appellants.

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

March 23, 2010.

898 N.Y.S.2d 174

DeSena & Sweeney, LLP, Hauppauge, N.Y. (Shawn P. O'Shaughnessy of counsel), for defendants/counterclaim plaintiffs-appellants.

Schwartzapfel Truhowsky Marcus, P.C. (Alexander J. Wulwick, New York, N.Y., of counsel), for plaintiff/counterclaim defendant-respondent and plaintiff-respondent.

Richard T. Lau & Associates, Jericho, N.Y. (Keith E. Ford of counsel), for plaintiff/counterclaim defendant-respondent on the counterclaim.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

71 A.D.3d 975

In an action to recover damages for personal injuries, the defendants/counterclaim plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated August 4, 2008, as granted the plaintiffs' motion for summary judgment on the issue of liability and granted the plaintiff/counterclaim defendant's motion for summary judgment dismissing the counterclaim, and (2) from an order of the same court dated December 4, 2008, which denied their cross motion for summary judgment dismissing the complaint insofar as asserted by the plaintiff Lois Reitz on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order dated August 4, 2008, is reversed insofar as appealed from, on the law, without costs or disbursements, the plaintiffs' motion for summary judgment on the issue of liability and the plaintiff/counterclaim defendant's motion for summary judgment dismissing the counterclaim are denied; and it is further,

ORDERED that the order dated December 4, 2008, is affirmed, without costs or disbursements.

On the morning of August 27, 2006, the plaintiff Lois Reitz was a passenger in a vehicle operated by the plaintiff/counterclaim defendant, William Reitz, when it was struck from behind by a vehicle owned by the defendant Seagate Trucking, Inc., and operated by the defendant Izzet Cebeci.

"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent...