MIRTON E. BAEZ-PENA, plf-ap, v. MM TRUCK AND BODY REPAIR, INC. def-res, KIEWIT CONSTRUCTORS INC. def

3834. MIRTON E. BAEZ-PENA, plf-ap, v. MM TRUCK AND BODY REPAIR, INC. def-res, KIEWIT CONSTRUCTORS INC. def — Seligson, Rothman & Rothman, New York (Martin S. Rothman of counsel), for ap — Thomas Torto, New York, for res — Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered January 19, 2016, which granted defendants MM Truck and Body Repair, Inc., M&M Truck and Body Repair, Inc., Sajo Transportation and Johnny Pena's motion for summary judgment dismissing the complaint and all cross claims against them, unanimously reversed, on the law, without costs, and the motion denied.

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3834. MIRTON E. BAEZ-PENA, plf-ap, v. MM TRUCK AND BODY REPAIR, INC. def-res, KIEWIT CONSTRUCTORS INC. def — Seligson, Rothman & Rothman, New York (Martin S. Rothman of counsel), for ap — Thomas Torto, New York, for res — Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered January 19, 2016, which granted defendants MM Truck and Body Repair, Inc., M&M Truck and Body Repair, Inc., Sajo Transportation and Johnny Pena’s motion for summary judgment dismissing the complaint and all cross claims against them, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff, while driving on the Major Deegan Expressway, rear-ended a box truck operated by defendant Johnny Pena, an employee of defendants MM Truck and Body Repair, Inc. and M&M Truck and Body Repair, Inc., and owned by defendant Sajo Transportation (collectively, the Pena defendants). According to plaintiff’s deposition testimony, when the accident happened, he was traveling southbound in the right-hand lane of the expressway at a speed no greater than 35 miles per hour. The accident occurred at 3:45 p.m., in traffic that plaintiff described as “medium.” The road was dry. Plaintiff stated that the box truck, which had a container attached to it, was moving in front of him at approximately 35 miles per hour and that he had been traveling behind it for approximately three minutes when the accident happened. He testified that he was two car lengths behind the box truck when he saw the container make contact with the Willis Avenue Bridge overpass and come to a complete and sudden stop. At no time did he see the box truck’s brake lights activate. After he saw the box truck make contact with the overpass, plaintiff applied his brakes, using strong pressure, but his vehicle skidded forward approximately one car length and struck the rear of the box truck. He did not swerve to either side, because there was no time.

MIRTON E. BAEZ-PENA, plf-ap, v. MM TRUCK AND BODY REPAIR, INC. def-res, KIEWIT CONSTRUCTORS INC. def

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