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Borbon v. Pescoran

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 11, 2010

MANUEL BORBON, PLAINTIFF-APPELLANT,
v.
JUAN C. PESCORAN, ET AL., DEFENDANTS-APPELLANTS,
MARVARINO'S, INC., ET AL., DEFENDANTS-RESPONDENTS,
ROSE TRUCKING, INC., ET AL., DEFENDANTS. [AND A THIRD-PARTY ACTION]

Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered June 23, 2009, which granted the motion of defendants Marvarino's, Cookies Childrens Togs, Sunshine Stores and John Doe (the "Marvarino defendants") for summary dismissal of the complaint, unanimously reversed on the law, without costs, the motion denied, and complaint reinstated.

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.

Tom, J.P., Sweeny, Moskowitz, DeGrasse, Manzanet-Daniels, JJ.

6074/07

This personal injury action arises from a motor vehicle accident in the Bronx in 2006. The vehicle in which plaintiff was a passenger drove up behind a Marvarino's box truck double-parked in the right-hand travel lane of Webster Avenue, in front of a Cookies department store. When plaintiff's vehicle shifted lanes to the left, it came into contact with a tractor-trailer driven by defendant Pescoran. There was no contact between any vehicle and the Marvarino's truck.

An issue of fact exists as to whether the Marvarino's truck was illegally double-parked, which would constitute some evidence of negligence (see Murray-Davis v Rapid Armored Corp., 300 AD2d 96 [2002]). But for the position of that truck, plaintiff's vehicle would not have had to make the lane change that purportedly precipitated the accident (Ferrer v Harris, 55 NY2d 285, 293 [1982]; see also Naeris v New York Tel. Co., 6 AD2d 196 [1958], affd 5 NY2d 1009 [1959]). Furthermore, even if the Marvarino defendants were not the sole cause of the accident, they could still be found liable if they were a contributing cause (see e.g. Commissi v Meeker, 8 NY2d 109, 117 [1960]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100511

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