Opinion
12-28-2016
Dandra GRAHAM, et al., plaintiffs-respondents, v. COURTESY TRANSPORTATION SERVICES, INC., et al., defendants-respondents, Westchester Ambulette Service, Inc., et al., appellants.
Brand, Glick & Brand, P.C., Garden City, NY (Peter M. Khrinenko of counsel), for appellants. The Berkman Law Office, LLC, Brooklyn, NY (Robert Tolchin and Ken Leitner of counsel; Meir Katz on the brief), for plaintiffs-respondents. Lewis, Brisbois, Bisgaard & Smith, LLP, New York, NY (Nicholas P. Hurzeler and C. Briggs Johnson of counsel), for defendants-respondents.
Brand, Glick & Brand, P.C., Garden City, NY (Peter M. Khrinenko of counsel), for appellants.
The Berkman Law Office, LLC, Brooklyn, NY (Robert Tolchin and Ken Leitner of counsel; Meir Katz on the brief), for plaintiffs-respondents.
Lewis, Brisbois, Bisgaard & Smith, LLP, New York, NY (Nicholas P. Hurzeler and C. Briggs Johnson of counsel), for defendants-respondents.
CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, ROBERT J. MILLER, and VALERIE BRATHWAITE NELSON, JJ.
In a consolidated action to recover damages for personal injuries, the defendants Westchester Ambulette Service, Inc., and Muhamadou Jaiteh appeal from an order of the Supreme Court, Kings County (Partnow, J.), dated May 12, 2015, which denied their motion, inter alia, for summary judgment dismissing the complaint insofar as asserted by the plaintiff Calvin Littles against them.
ORDERED that the order is affirmed, with one bill of costs.
On July 5, 2011, an ambulette owned by the defendant Courtesy Transportation Services, Inc., and operated by the defendant Barry White struck another ambulette in the rear. The other ambulette was owned by the defendant Westchester Ambulette Service, Inc., and operated by the defendant Muhamadou Jaiteh (hereinafter together the appellants). The plaintiffs were passengers in the appellants' ambulette at the time of the accident. They each commenced separate actions against the defendants to recover damages for personal injuries. After issue was joined, the Supreme Court consolidated the two actions. The appellants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted by the plaintiff Calvin Littles against them. The Supreme Court denied the motion. We affirm.
A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident (see Lukyanovich v. H.L. Gen. Contrs., Inc., 141 A.D.3d 693, 35 N.Y.S.3d 463 ; Gezelter v. Pecora, 129 A.D.3d 1021, 1021–1022, 13 N.Y.S.3d 141 ; Boulos v. Lerner–Harrington, 124 A.D.3d 709, 2 N.Y.S.3d 526 ). A rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle (see Theo v. Vasquez, 136 A.D.3d 795, 26 N.Y.S.3d 85 ; Cortese v. Pobejimov, 136 A.D.3d 635, 24 N.Y.S.3d 405 ). Nonetheless, there can be more than one proximate cause of an accident (see Forte v. City of Albany, 279 N.Y. 416, 422, 18 N.E.2d 643 ; Lukyanovich v. H.L. Gen. Contrs., Inc., 141 A.D.3d at 693, 35 N.Y.S.3d 463; Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389 ; Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604 ), and the issue of proximate cause is generally a question for the trier of fact (see Darmento v. Pacific
Molasses Co., 81 N.Y.2d 985, 987, 599 N.Y.S.2d 528, 615 N.E.2d 1012 ; Somersall v. New York Tel. Co., 52 N.Y.2d 157, 168, 436 N.Y.S.2d 858, 418 N.E.2d 373 ; Lukyanovich v. H.L. Gen. Contrs., Inc., 141 A.D.3d at 693, 35 N.Y.S.3d 463).
The appellants established their prima facie entitlement to judgment as a matter of law by submitting the affidavit of Jaiteh, in which he averred that the appellants' ambulette was stopped in traffic when it was struck in the rear by the other ambulette, demonstrating that Jaiteh was not at fault in the happening of the accident (see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726 ; Cortese v. Pobejimov, 136 A.D.3d at 636, 24 N.Y.S.3d 405; Brothers v. Bartling, 130 A.D.3d 554, 555, 13 N.Y.S.3d 202 ; Whelan v. Sutherland, 128 A.D.3d 1055, 1056, 9 N.Y.S.3d 639 ; Drakh v. Levin, 123 A.D.3d 1084, 1085, 1 N.Y.S.3d 202 ). However, in opposition, Littles' affidavit raised a triable issue of fact as to whether Jaiteh was negligent and whether his negligence contributed to the happening of the accident (see Tutrani v. County of Suffolk, 10 N.Y.3d at 908, 861 N.Y.S.2d 610, 891 N.E.2d 726 ; Whelan v. Sutherland, 128 A.D.3d at 1056, 9 N.Y.S.3d 639 ; Drakh v. Levin, 123 A.D.3d at 1085, 1 N.Y.S.3d 202 ; D'Agostino v. YRC, Inc., 120 A.D.3d 1291, 1292, 992 N.Y.S.2d 358 ; Gambino v. City of New York, 205 A.D.2d 583, 613 N.Y.S.2d 417 ). Accordingly, the Supreme Court properly denied the appellants' motion.The respondents' contention that summary judgment should be denied on res judicata and collateral estoppel grounds, raised for the first time on appeal and based on matter dehors the record, is not properly before this Court.