Summary
In Diako v Yunga (126 AD3d 567 [1st Dept 2015]), which also involved an accident on an expressway, the lead vehicle pumped its brakes and gradually slowed down before it was struck from behind.
Summary of this case from Baez-Pena v. MM Truck & Body Repair, Inc.Opinion
03-19-2015
Elhadj Y. DIAKO, Plaintiff–Appellant, v. Leonardo Dany Aguirre YUNGA, et al., Defendants–Respondents.
Macaluso & Fafinski, P.C., Bronx (Donna A. Fafinski of counsel), for appellant. Amabile & Erman, P.C., Staten Island (Marc J. Falcone of counsel), for respondents.
Macaluso & Fafinski, P.C., Bronx (Donna A. Fafinski of counsel), for appellant.
Amabile & Erman, P.C., Staten Island (Marc J. Falcone of counsel), for respondents.
Opinion
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered February 14, 2014, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff established entitlement to judgment as a matter of law on the issue of liability by submitting his testimony that he was traveling in the left lane of an expressway at 50 miles per hour when defendants' vehicle came up behind him at a rapid rate of speed and struck the rear end of his vehicle (see Cruz v. Lise, 123 A.D.3d 514, 999 N.Y.S.2d 41 [1st Dept.2014] ; Cabrera v. Rodriguez, 72 A.D.3d 553, 900 N.Y.S.2d 29 [1st Dept.2010] ).
In opposition, defendants failed to come forward with a nonnegligent explanation for the accident (see e.g. Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept.1999] ). Defendant driver Yunga testified that he was traveling in the left lane, 200 feet behind plaintiff's vehicle, when he saw plaintiff begin to pump his breaks and gradually slow down. The gap between the vehicles closed and then plaintiff made a sudden stop causing Yunga to “tap” the rear of plaintiff's vehicle. Defendants' assertion that plaintiff came to a sudden stop “is insufficient to rebut the presumption of negligence” (Cabrera, 72 A.D.3d at 553, 900 N.Y.S.2d 29 ; see Santana v. Tic–Tak Limo Corp., 106 A.D.3d 572, 966 N.Y.S.2d 30 [1st Dept.2013] ).
We have considered defendants' remaining arguments and find them unavailing.
TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, KAPNICK, JJ., concur.