DEFENSE DENIED SUMMARY JUDGMENT FOR FAILING TO SHOW PROPER MAINTENANCE OF TIRE THAT SHREDDED & STRUCK PLAINTIFF'S VEHICLE

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Sera Eum v. Charles W.D. Stephens

Date: March 6, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident attorney)

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In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated November 4, 2010, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

On May 30, 2006, the plaintiffs were driving on the Long Island Expressway behind a roll‑off dump truck owned by the defendant Arma Scrap Metal Co., Inc., and operated by the defendant Charles W.D. Stephens (hereinafter the defendant driver), when one of the tires on the truck blew out. Although the plaintiffs' vehicle did not make contact with the truck or any other vehicle, the plaintiffs alleged that they sustained injuries from, among other things, the impact of the rubber from the blown tire striking their car. Subsequently, the plaintiffs commenced this action against the defendants alleging that the accident was due to the defendants' negligent maintenance of the subject truck. After discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the motion. The defendants appeal and we affirm.

The defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, as they failed to demonstrate that their maintenance of the truck's tires was reasonable under all of the circumstances (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Castro v. Salem Truck Leasing, Inc., 63 A.D.3d 1095, 882 N.Y.S.2d 283). Since the defendants failed to satisfy their prima facie burden, denial of their motion was required without regard to the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Accordingly, the defendants' motion was properly denied.

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