Opinion
11592 Index 20153/17E
06-04-2020
Chester CAMPBELL, Plaintiff–Respondent, v. Vincent MINCELLO, et al., Defendants, Pauline Cardillo, Defendant–Appellant.
Collins, Fitzpatrick & Schoene, LLP, White Plains (Ralph Schoene of counsel), for appellant.
Collins, Fitzpatrick & Schoene, LLP, White Plains (Ralph Schoene of counsel), for appellant.
Friedman, J.P., Kapnick, Kern, Singh, Gonza´lez, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered October 1, 2018, which, to the extent appealed from as limited by the briefs, upon reargument and renewal, granted plaintiff's motion for partial summary judgment on the issue of liability as against defendant Pauline Cardillo, unanimously reversed, on the law, without costs, and the motion denied.
Even assuming that plaintiff established prima facie that the vehicle in which he was a passenger was rear-ended by defendant Mincello's vehicle, which was then rear-ended by defendant Cardillo, Cardillo raised a triable issue of fact as to her negligence through her affidavit averring that she was at a complete stop when her own vehicle was struck in the rear and propelled into the vehicle in front of her (see Arellano v. Richards, 162 A.D.3d 967, 79 N.Y.S.3d 288 [2d Dept. 2018] ; Gustke v. Nickerson, 159 A.D.3d 1573, 1574, 72 N.Y.S.3d 733 [4th Dept. 2018], lv dismissed in part, denied in part 32 N.Y.3d 1048, 88 N.Y.S.3d 403, 113 N.E.3d 459 [2018] ). That plaintiff, as a passenger in the vehicle in front of defendant Mincello, may have been free of comparative negligence does not warrant a different outcome, as an innocent passenger must still establish a defendant driver's liability under traditional principles of tort liability in order to prevail on the issue of liability against that driver (see Oluwatayo v. Dulinayan, 142 A.D.3d 113, 117–120, 35 N.Y.S.3d 84 [1st Dept. 2016] ).