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.
Decided on April 25, 2013
Tom, J.P., Acosta, Roman, Feinman, Clark, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about March 29, 2012, which denied the motion of defendant Eardley W. Green for summary judgment dismissing the complaint and all cross claims as against him, unanimously affirmed, without costs.
Green's motion for summary judgment was properly denied as premature, since limited discovery has taken place and Green himself has not yet been deposed in this matter (see Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]). In any event, the existing record presents triable issues of fact as to whether Green's vehicle was stopped prior to being struck in the rear by a vehicle operated by co-defendant Macio. Although Green testified in a different action regarding the underlying accident that he had stopped several seconds before he was struck in the rear, Macio testified that when the accident occurred, he was lowering his speed because the cars ahead of him were slowing down. Moreover, in opposition to Green's motion, co-defendant Brian Langford, the driver of the second car in this five-car collision, submitted an affidavit averring that Green's vehicle struck the rear of his vehicle before Green was rear-ended by Macio. In light of the differing versions as to how the accident occurred and the possible contributions by the various defendants, summary disposition was not warranted (see Lewis v Konan, 39 AD3d 319 [1st Dept 2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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