Levine v. Dagio Construction Corp. — 261 A.D.2d 588

Majority

p. 588

Mel Levine, Appellant, et al., Plaintiff, v Dagio Construction Corp. et al., Respondents.

[690 NYS2d 679]

—In an action to recover damages for personal injuries, the plaintiff Mel Levine appeals from an order of the Supreme Court, Nassau

p. 589

County (Winick, J.), dated September 10, 1998, which denied his motion for summary judgment dismissing the defendants’ counterclaim insofar as asserted against him.

Ordered that the order is affirmed, with costs.

Contrary to the appellant’s contention that the proof before the Supreme Court conclusively showed that his vehicle was stopped and in the middle lane of the highway when it was struck from behind by the vehicle owned by defendant Dagio Construction Corp. and operated by the defendant Francesco Arizzi, contradictions in the deposition testimony given by the appellant and Arizzi evince triable issues of fact sufficient to defeat a motion for summary judgment (see, Benyarko v Avis Rent A Car Sys., 162 AD2d 572 ; Young v City of New York, 113 AD2d 833 ).

Accordingly, the appellant’s motion for summary judgment dismissing the defendants’ counterclaim insofar as asserted against him was properly denied. S. Miller, J. P., Ritter, Thompson and Altman, JJ., concur.

Cases cited

Benyarko v. Avis Rent A Car System, Inc. 162 AD2d 572 N.Y. App. Div. 1990-06-18 p. 589
Young v. City of New York 113 AD2d 833 N.Y. App. Div. 1985-09-16 p. 589