Opinion
2016–07414 Index No. 7340/14
01-24-2018
Richard LEWIS, et al., appellants, v. CITY OF NEW YORK, et al., respondents.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Brian Isaac of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Aaron Bloom and Kaitlin DíMaiolo of counsel), for respondents.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Brian Isaac of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Aaron Bloom and Kaitlin DíMaiolo of counsel), for respondents.
L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, LINDA CHRISTOPHER, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Kings County (Genovesi, J.), dated May 20, 2016, which denied their motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is granted.
On September 5, 2013, the plaintiff Chantelle Kemp was a passenger in a vehicle operated by the plaintiff Richard Lewis which was struck in the rear by a vehicle owned by the defendant City of New York and operated by the defendant Jonathan Carl Lindie. The plaintiffs allegedly sustained personal injuries and, thereafter, commenced this action against the defendants. The plaintiffs moved for summary judgment on the issue of liability, contending that the defendant driver's negligent operation of his vehicle was the sole proximate cause of the accident. The Supreme Court denied the motion. The plaintiffs appeal.
A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726 ; Bowen v. Farrell, 140 A.D.3d 1001, 1002, 34 N.Y.S.3d 165 ; Theo v. Vasquez, 136 A.D.3d 795, 796, 26 N.Y.S.3d 85 ). "A nonnegligent explanation includes, but is not limited to, ‘sudden or unavoidable circumstances' " ( D'Agostino v. YRC, Inc., 120 A.D.3d 1291, 1292, 992 N.Y.S.2d 358, quoting Gambino v. City of New York, 205 A.D.2d 583, 583, 613 N.Y.S.2d 417 ).
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that their vehicle was stopped for the traffic condition ahead when it was struck in the rear by the defendants' vehicle, and that they were not comparatively at fault in the happening of the accident (see Bowen v. Farrell, 140 A.D.3d at 1002, 34 N.Y.S.3d 165 ; Bene v. Dalessio, 135 A.D.3d 679, 680, 22 N.Y.S.3d 237 ; Lisetskiy v. Weiss, 123 A.D.3d 775, 776, 999 N.Y.S.2d 83 ). In opposition, the defendants failed to raise a triable issue of fact (see Barry v. Pepsi–Cola Bottling Co. of N.Y., Inc., 130 A.D.3d 500, 11 N.Y.S.3d 857 ; Lee v. D. Daniels Contr., Ltd., 113 A.D.3d 824, 978 N.Y.S.2d 908 ; Agramonte v. City of New York, 288 A.D.2d 75, 76, 732 N.Y.S.2d 414 ; Marsella v. Sound Distrib. Corp., 248 A.D.2d 683, 684, 670 N.Y.S.2d 559 ).
Accordingly, the Supreme Court should have granted the plaintiffs' motion for summary judgment on the issue of liability.
HALL, J.P., AUSTIN, SGROI and CHRISTOPHER, JJ., concur.