Opinion
1010 CA 19-01787
12-23-2020
Julie WISNIEWSKI, Plaintiff-Appellant, v. Gern JAEGER, Defendant, Joseph Marra and Stevens Driving School, LLC, Defendants-Respondents.
CAMPBELL & ASSOCIATES, EDEN (JASON M. TELAAK OF COUNSEL), FOR PLAINTIFF-APPELLANT. GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
CAMPBELL & ASSOCIATES, EDEN (JASON M. TELAAK OF COUNSEL), FOR PLAINTIFF-APPELLANT.
GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when the vehicle in which she was a passenger, which was operated by defendant Gern Jaeger, rear-ended a vehicle operated by defendant Joseph Marra and owned by defendant Stevens Driving School, LLC (collectively, defendants). Contrary to plaintiff's contention, we conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint and all cross claims against them. Defendants established their entitlement to judgment as a matter of law by submitting evidence that Jaeger's vehicle rear-ended defendants' vehicle and that there was no explanation for the accident other than Jaeger's negligence (see Barton v. Youmans , 13 A.D.3d 1151, 1152, 788 N.Y.S.2d 530 [4th Dept. 2004] ; see generally Ruzycki v. Baker , 301 A.D.2d 48, 50, 750 N.Y.S.2d 680 [4th Dept. 2002] ). The burden thus shifted to plaintiff to raise an issue of fact, and she failed to do so.
Even if we assume, arguendo, that defendants' vehicle came to a " ‘sudden and abrupt stop’ " ( Johnson v. Yarussi Constr., Inc. , 74 A.D.3d 1772, 1773, 902 N.Y.S.2d 763 [4th Dept. 2010] ), which in some circumstances is sufficient to raise an issue of fact with respect to the negligence of the driver of the lead vehicle in a rear-end collision, there is no dispute in this case that Marra stopped defendants' vehicle in the far right lane in order to yield to an emergency vehicle (see Vehicle and Traffic Law § 1144 [a] ; Barton , 13 A.D.3d at 1152, 788 N.Y.S.2d 530 ; DiPaola v. Scherpich , 239 A.D.2d 459, 460, 657 N.Y.S.2d 883 [2d Dept. 1997] ; Gladstone v. Hachuel , 225 A.D.2d 730, 730, 639 N.Y.S.2d 856 [2d Dept. 1996], lv dismissed 89 N.Y.2d 982, 656 N.Y.S.2d 740, 678 N.E.2d 1356 [1997] ). We thus conclude that plaintiff failed to raise an issue of fact whether Marra negligently operated defendants' vehicle.