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Yavkina v. New York City Police Dep't

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 3, 2009

ANTONINA YAVKINA, ET AL., PLAINTIFFS-RESPONDENTS,
v.
NEW YORK CITY POLICE DEPARTMENT, DEFENDANT THIRD-PARTY PLAINTIFF-RESPONDENT; ET AL., DEFENDANT,
FEDERAL EXPRESS CORPORATION, THIRD-PARTY DEFENDANT- APPELLANT.

In an action to recover damages for personal injuries, the third-party defendant Federal Express Corporation appeals from an order of the Supreme Court, Kings County (Miller, J.), dated March 31, 2008, which denied its motion for summary judgment dismissing the third-party complaint and cross claims insofar as asserted against it.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, RUTH C. BALKIN and CHERYL E. CHAMBERS, JJ.

(Index No. 39099/1999)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied the third-party defendant's motion for summary judgment dismissing the third-party complaint, as the third-party defendant failed to submit evidence sufficient to demonstrate its prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Adams v Lemberg Enters., Inc., 44 AD3d 694). "[O]wners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other vehicles, depending on the determinations by the trier of fact on the issues of forseeability and proximate cause unique to the particular case" (Reuter v Rodgers, 232 AD2d 619; see Sommersall v New York Tel. Co., 52 NY2d 157, 167). The issue of whether the third-party defendant's employee was negligent in double-parking his delivery truck and, if so, whether the negligence was a proximate cause of the accident should be submitted to the jury (see Ferrer v Harris, 55 NY2d 285, 293-294; Adams v Lemberg Enters., Inc., 44 AD3d at 694; Petrone v County of Nassau, 305 AD2d 569; Murray-Davis v Rapid Armored Corp., 300 AD2d 96; Jordan v Aviles, 288 AD2d 347, 348; Giordano v Sheridan Maintenance Corp., 38 AD2d 552, 553).

The third-party defendant's remaining contentions are without merit.

SPOLZINO, J.P., SANTUCCI, BALKIN and CHAMBERS, JJ., concur.

20090303

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