| Frutchey v Felicita |
| 2008 NY Slip Op 06745 [11 NY3d 764] |
| September 11, 2008 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, November 12, 2008 |
| Damon Frutchey, an Infant, by Gregg Frutchey, His Parent and Guardian, et al., Appellants, v Jacqueline Felicita, Defendant, and Michael V. DeLosa et al., Respondents. |
Decided September 11, 2008
Frutchey v Felicita, 45 AD3d 1141, reversed.
APPEARANCES OF COUNSEL
Friedlander, Friedlander & Arcesi, P.C., Waverly (William S. Friedlander of counsel), for appellants.
Coughlin & Gerhart LLP, Binghamton (Keith A. O'Hara of counsel), for respondents.
Memorandum.
The order of the Appellate Division should be reversed, with costs, and the motion by defendants Michael V. DeLosa and Allen's Plumbing, Heating and Air Conditioning, Inc. for summary judgment denied. Plaintiffs raised triable issues of fact concerning whether (1) defendant DeLosa acted negligently in traveling at an excessive speed and in following too [*2]closely to Nichols's vehicle, given the road and weather conditions and, (2) if so, such negligence was a proximate cause of the accident (see Herbert v Morgan Drive-A-Way, 202 AD2d 886, 888-889 [1994, Yesawich Jr., J., dissenting], revd on dissenting mem 84 NY2d 835 [1994]; Esposito v Wright, 28 AD3d 1142, 1144 [4th Dept 2006]).
Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.