New York Supreme and/or Appellate Courts Appellate Division, First Department
April 25, 2013
NARCO CAB CORP., ET AL.,
Mello v Narco Cab Corp.
Decided on April 25, 2013
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., Acosta, Saxe, Freedman, Feinman, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered April 11, 2012, which, in this action for personal injuries allegedly sustained in a motor vehicle accident, denied plaintiff's motion for partial summary judgment on the issue of liability as against all defendants, unanimously reversed, on the law, without costs, the motion granted to the extent of finding no culpable conduct by plaintiff on the issue of liability, and the matter remanded for further proceedings.
Plaintiff established that, as a back-seat passenger in a taxi cab that rear-ended a second vehicle, she was free of negligence as a matter of law. Plaintiff testified that just before the accident occurred, her friend, who was with her in the back seat, was in the process of instructing the driver to slow down. The driver testified he did not hear plaintiff's friend, and there is no basis for finding that plaintiff or her friend did anything to cause the accident or could have prevented it (cf. Bruni v City of New York, 2 NY3d 319, 328 . Since plaintiff was an innocent rear-seat passenger who cannot be found at fault under any version of how the accident occurred, the motion should have been granted to the extent indicated (see Garcia v Tri-County Ambulette Serv., 282 AD2d 206 [1st Dept 2001]; see also Medina v Rodriguez, 92 AD3d 850 [2d Dept 2012]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 25, 2013
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