Lopapa v. Good Humor Corp.

—In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Ramirez, J.), dated October 14, 1993, which granted the motion by the respondent Streets Ice Cream Company for summary judgment dismissing the complaint and all cross claims insofar as asserted as against it. Ordered that the order is affirmed, with costs. The plaintiff Gregory Lopapa sustained injuries when he was struck by a car as he attempted to cross the street in front of an ice cream truck allegedly owned by the defendant James Cozzo. The plaintiffs commenced this action against, inter alia, the respondent Streets Ice Cream Company (hereinafter Streets), which supplied the owner of the truck with ice cream and provided garage space for the truck. The Supreme Court granted the motion by Streets for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, concluding that Lopapa’s negligence in crossing the street in the middle of the block was the proximate cause of the accident. While the Supreme Court erred in concluding that Lopapa’s negligence barred him from recovery (see, CPLR 1411), we nevertheless agree that summary judgment in favor of Streets was warranted. In moving for summary judgment, Streets established that there was no relationship between it and the owner of the ice cream truck which would give rise to liability on the part of Streets for the negligence of the owner (see, Shapiro v Robinson, 63 NY2d 896; Ingenito v Robert M. Rosen, P. C., 187 AD2d 487; Conroy v Bevilacqua, 179 AD2d 596; Giordano v Sheridan Maintenance Corp., 38 AD2d 552). Because the plaintiffs failed to raise a triable issue of fact in this regard, Streets is entitled to summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562). Sullivan, J. P., Copertino, Hart and Krausman, JJ., concur.