Opinion
06-15-2016
Blanca B. Niquepa DE CASTILLO, et al., appellants, v. John A. SORMELEY, respondent.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Brian Isaac of counsel), for appellants. Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs of counsel), for respondent.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Brian Isaac of counsel), for appellants.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. (Jonathan A. Dachs of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and VALERIE BRATHWAITE NELSON, JJ.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Velasquez, J.), entered July 8, 2015, 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.
The plaintiffs Blanca B. Niquepa De Castillo and Daniela Sanchez (hereinafter Daniela) allege that they were passengers in a motor vehicle operated by Daniela's mother, the plaintiff Yisseth Sanchez (hereinafter Sanchez), when that vehicle was struck in the rear by a vehicle operated by the defendant on 32nd Avenue at its intersection with Francis Lewis Boulevard, in Queens. The plaintiffs commenced this action against the defendant, and moved for summary judgment on the issue of liability. The Supreme Court denied the motion. We reverse.
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 Theo v. Vasquez, 136 A.D.3d 795, 796, 26 N.Y.S.3d 85 ; Le Grand v. Silberstein, 123 A.D.3d 773, 774, 999 N.Y.S.2d 96 ; Cheow v. Cheng Lin Jin, 121 A.D.3d 1058, 1058–1059, 995 N.Y.S.2d 186 ; Volpe v. Limoncelli, 74 A.D.3d 795, 795, 902 N.Y.S.2d 152 ). “While a nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, ‘vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead’ ” (Theo v. Vasquez, 136 A.D.3d at 796, 26 N.Y.S.3d 85, quoting Brothers v. Bartling, 130 A.D.3d 554, 556, 13 N.Y.S.3d 202 [internal quotation marks omitted]; see Volpe v. Limoncelli, 74 A.D.3d at 795–796, 902 N.Y.S.2d 152 ).
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability by submitting De Castillo's affidavit, which demonstrated that the plaintiffs' vehicle was stopped at a red light at the subject intersection for approximately 10 seconds when it was struck in the rear by the defendant's vehicle, and that no negligence on the part of the plaintiffs contributed to the accident (see Bene v. Dalessio, 135 A.D.3d 679, 680, 22 N.Y.S.3d 237 ; Volpe v. Limoncelli, 74 A.D.3d at 795, 902 N.Y.S.2d 152 ; see also Theo v. Vasquez, 136 A.D.3d at 796, 26 N.Y.S.3d 85; Le Grand v. Silberstein, 123 A.D.3d at 775, 999 N.Y.S.2d 96 ).
In opposition to the plaintiffs' prima facie showing, the defendant failed to raise a triable issue of fact (see Brothers v. Bartling, 130 A.D.3d at 556, 13 N.Y.S.3d 202 ; Le Grand v. Silberstein, 123 A.D.3d at 775, 999 N.Y.S.2d 96 ). According to the defendant's affidavit, on the day of the collision, he observed that approximately three seconds remained on the “Walk” sign before the light would change from green to red, when he saw the plaintiffs' vehicle stop at the subject intersection. The defendant further averred that he thought that Sanchez would turn her vehicle, “either left or right,” but the vehicle did not move, and “after a second,” he pressed on his brakes but skidded on the roadway, which was wet and covered by wet leaves, and the accident ensued.
A driver has “a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” (Gallo v. Jairath, 122 A.D.3d 795, 796, 996 N.Y.S.2d 682 ; see Balducci v.
Velasquez, 92 A.D.3d 626, 628, 938 N.Y.S.2d 178 ). Here, the defendant specifically averred that he saw the plaintiffs' vehicle stop at the intersection but he did not immediately depress his brakes. The defendant's explanation for not immediately stopping—that the traffic light was green and he believed that the plaintiffs' vehicle would proceed into the intersection and turn (even though he does not aver that he saw a turn signal)—did not obviate his duty to stop when he saw that the plaintiffs' vehicle was stopped (see Cheow v. Cheng Lin Jin, 121 A.D.3d at 1059, 995 N.Y.S.2d 186 ; Sayyed v. Murray, 109 A.D.3d 464, 465, 970 N.Y.S.2d 279 ; Volpe v. Limoncelli, 74 A.D.3d at 796, 902 N.Y.S.2d 152 ; Faul v. Reilly, 29 A.D.3d 626, 626, 816 N.Y.S.2d 502 ). Thus, the defendant failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the rear-end collision (see Bene v. Dalessio, 135 A.D.3d at 680, 22 N.Y.S.3d 237; Brothers v. Bartling, 130 A.D.3d at 556, 13 N.Y.S.3d 202 ).
Accordingly, the Supreme Court should have granted the plaintiffs' motion for summary judgment on the issue of liability.