Rosado v. Bou

• Decision Date: 14 October 2008
• Docket Number: 2007-10451
• Citation: 2008 NY Slip Op 07896,866 N.Y.S.2d 231,55 A.D.3d 710
• Parties: SERGIO ROSADO, Respondent, v. JOSE BOU et al., Respondents, and POPTEE PATANJO et al., Appellants.
• Court: New York Supreme Court — Appellate Division

55 A.D.3d 710

866 N.Y.S.2d 231

2008 NY Slip Op 07896

SERGIO ROSADO, Respondent, v. JOSE BOU et al., Respondents, and POPTEE PATANJO et al., Appellants.

2007-10451

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 14, 2008.

In an action to recover damages for personal injuries, the defendants Poptee Patanjo and Joe Del's Auto Body, Inc., doing business as Joe Del's Auto Body, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated November 2, 2007, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them and granted the cross motion of the defendant Town of Brookhaven for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the appeal from so much of the order as granted those branches of the cross motion of the defendant Town of Brookhaven which were for summary judgment dismissing the complaint and the cross claims of the defendants Jose Bou and County of Suffolk insofar as asserted against it is dismissed as the appellants are not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Poptee Patanjo and Joe Del's Auto Body, Inc., doing business as Joe Del's Auto Body, which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against Poptee Patanjo and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as reviewed, without costs or disbursements.

On April 20, 2004, at approximately 4:45 P.M., the plaintiff was driving a motor scooter westbound on Montauk Highway in the Town of Brookhaven. At the intersection of Montauk Highway and Weaver Avenue, his scooter collided with a vehicle driven by the defendant Jose Bou. Bou had approached the intersection driving southbound on Weaver Avenue and had just begun to make a turn onto Montauk Highway when the accident occurred. The collision allegedly was caused, in part, by vehicles parked close to the intersection on the shoulder of Montauk Highway and on the sidewalk which obstructed the lines of vision of both the plaintiff and Bou. The vehicles allegedly had been placed there by employees of the defendant Joe Del's Auto Body, Inc., doing business as Joe Del's Auto Body (hereinafter Joe Del's Auto Body), a business located on the northeast corner of the intersection.

The plaintiff thereafter commenced this action against Bou, the Town of Brookhaven, the County of Suffolk, Joe Del's Auto Body, and Poptee Patanjo, the owner of the premises occupied by Joe Del's Auto Body. The defendants Joe Del's Auto Body and Patanjo (hereinafter collectively the appellants) asserted a cross claim for contribution and common-law indemnification against Bou, the Town, and the County.

Bou testified at his deposition that he did not see the plaintiff approaching because his view was obstructed by vehicles parked on the shoulder of Montauk Highway immediately to the east of the intersection of Montauk Highway and Weaver Avenue. The plaintiff testified at his deposition that he did not see...