That he diverted his eyes from the road only to find that Krynski had stopped does nothing to suggest Krynski's liability, and therefore fails to raise any material issue of fact. Diller v. City of New York Police Dep't, 269 A.D.2d 143, 144, 701 N.Y.S.2d 432 (1st Dep't 2000); Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 (1st Dep't 1999). 2. Traffic Conditions
Under these circumstances, neither Maher nor the Plaintiffs may rely on the sudden stop by the Benvins' vehicle as a non-negligent explanation in order to defeat summary judgment.See, e.g., Ruzycki v. Baker, 301 A.D.2d 48, 50, 750 N.Y.S.2d 680, 682 (4th Dep't 2002) ("[rear] driver's failure to anticipate and react to the slow and cautious movement of [front driver's] vehicle is not an adequate, non-negligent explanation for the accident.") (quoting Diller v. City of New York Police Dep't, 269 A.D.2d 143, 144, 701 N.Y.S.2d 432 (1st Dep't 2000));Agramonte, 288 A.D.2d at 76, 732 N.Y.S.2d at 415; Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545, 547 (1st Dep't 1999) (the "rule [of presumption of negligence of rear vehicles] has been applied when the front vehicle stops suddenly in slow-moving traffic . . . and when the front car stopped after changing lanes.");Mascitti v. Greene, 250 A.D.2d 821, 822, 673 N.Y.S.2d 206 (2d Dep't 1998); see also Schwall v. Weiderman, 99 Civ. 4451, 2004 WL 547975, at *2 (S.D.N.Y. Mar. 18, 2004). Although no evidence has been proffered that rush-hour traffic conditions prevailed, or that traffic was stop-and-go, the presence of the two stopped cars ahead of the Benvins' vehicle should have alerted the vehicles following behind that a stop was possible.
Unlike the situation in Pace where the driver could not have known what lay around the curve, Brenes should have been aware that because there was "heavy traffic" cars could be stopped on the other side of the curve. See Diller v. City of New York Police Depart., 701 N.Y.S.2d 432, 433 (N.Y.App.Div. 2000) (holding that because it can easily be anticipated that cars up ahead will make frequent stops in rush hour traffic, "defendant driver's failure to anticipate and react to the slow and cautious movement of plaintiff's vehicle" is not an adequate, non-negligent explanation for the accident); Johnson v. Phillips, 690 N.Y.S.2d 545, 547 (N.Y.App.Div. 1999) (holding that drivers have a duty to be aware of traffic conditions, including vehicle stoppages) The defendants also allege that "there were no traffic directional signals illuminated on the rear of [Allen's] vehicle."
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the stopped vehicle in which he was a passenger was rear-ended by a vehicle owned and driven by defendant and third-party plaintiff, Michael J. Hale. Supreme Court properly denied that part of the motion of defendant and third-party defendant, David A. Andrzejewski, the driver of the vehicle in which plaintiff was a passenger, for partial summary judgment determining that the negligence of Hale was the sole proximate cause of the accident. It is well established that, "[a]s a matter of law, 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" ( Diller v City of N.Y. Police Dept, 269 AD2d 143, 144; see Baron v Murray, 268 AD2d 495; see also Downs v Toth, 265 AD2d 925). In opposition to the motion, however, Hale submitted evidence that Andrzejewski stopped short and rear-ended the vehicle in front of him prior to being rear-ended by Hale.
"Evidence that plaintiff's lead vehicle was forced to stop suddenly in heavy traffic does not amount to proof that plaintiff was in any way at fault for the accident. . . . As it can easily be anticipated that cars up ahead will make frequent stops in rush hour traffic, `[d]efendant driver's failure to anticipate and react to the slow and cautious movement of plaintiff's vehicle' is not an adequate [nonnegligent] explanation for the accident" ( Diller v. City of New York Police Dept., 269 AD2d 143, 144, quoting Galante v. BMW Fin. Servs. N. Am., 223 AD2d 421, 421). With respect to defendant's cross motion, we affirm that part of the order denying the cross motion for the reasons stated in the decision at Supreme Court.
Under some circumstances, evidence that the driver of the front vehicle came to an abrupt stop is sufficient to rebut the presumption of negligence by the driver of the rear vehicle and raise a triable issue of fact whether the driver of the front vehicle contributed to the accident ( see e.g. Heal v. Liszewski, 294 A.D.2d 911; Rosa v. Colonial Tr., 276 A.D.2d 781; Tripp v. GELCO Corp., 260 A.D.2d 925, 926). Under the circumstances of this case, however, defendant's deposition testimony was insufficient to raise a triable issue of fact ( see Mascitti v. Greene, 250 A.D.2d 821, 821-822; see also Geschwind v. Hoffman, 285 A.D.2d 448, 449; Leal, 224 A.D.2d at 393-394). Defendant admitted that the traffic was heavy and slow-moving, and "[e]vidence that plaintiff's lead vehicle was forced to stop suddenly in heavy traffic does not amount to proof that plaintiff was in any way at fault for the accident" ( Diller v. City of New York Police Dept., 269 A.D.2d 143, 144). "As it can easily be anticipated that cars up ahead will make frequent stops in rush hour traffic, `[d]efendant driver's failure to anticipate and react to the slow and cautious movement of plaintiff's vehicle' is not an adequate, non-negligent explanation for the accident" ( id., quoting Galante v. BMW Fin. Servs. N. Am., 223 A.D.2d 421, 421). Under the circumstances of this case, we conclude that plaintiffs are entitled to partial summary judgment on the issue of negligence.
It is undisputed that the vehicle driven by the defendant third-party plaintiff Donald Hayes hit the vehicle of the third-party defendants while it was stopped. The fact that the third-party defendants' vehicle was not stopped at a traffic light is insufficient, without more, such as a sudden stop, to defeat summary judgment (see Martin v. Pullafico, 272 A.D.2d 305), to rebut the inference of negligence (see Diller v. City of New York Police Dept., 269 A.D.2d 143). Moreover, by driving while impaired by alcohol Hayes clearly fell below the appropriate standard of care (see Andre v. Pomeroy, 35 N.Y.2d 361; Diller v. City of New York Police Dept., supra at 144).
Before: Sullivan, P.J., Nardelli, Ellerin, Buckley, Marlow, JJ. This personal injury action arises from a rear-end collision in which the Rivera vehicle collided with the Shelton automobile. Although the Rivera defendants had the burden of overcoming a presumption of negligence since their vehicle was behind Shelton's, they did not provide a non-negligent explanation sufficient to raise a triable issue of fact (Barba v. Best Security Corporation, 235 A.D.2d 381) and, as such, Shelton is entitled to summary judgment (Mitchell v. Gonzalez, 269 A.D.2d 250; Diller v. City of New York Police Department, 269 A.D.2d 143). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
Before: Nardelli, J.P., Williams, Wallach, Rubin, Friedman, JJ. Defendant-appellant, the driver of the vehicle in which plaintiff was a passenger, was entitled to summary judgment in this personal injury action inasmuch as plaintiff's unrebutted testimony conclusively established that said vehicle was struck from the rear while stopped for a red light (Diller v. City of New York Police Dept., 269 A.D.2d 143, 701 N.Y.S.2d 432; Rue v. Stokes, 191 A.D.2d 245; see also, Johnson v. Phillips, 261 A.D.2d 269). Under such circumstances, any driver's failure to comply with discovery demands did not warrant denial of summary judgment, given that there was no likelihood that further discovery might lead to facts that would impose liability on defendant or relieve co-defendant of sole liability (Noonan v. New York Blood Center, 269 A.D.2d 323, 703 N.Y.S.2d 468;Green v. William Penn Life Ins. Co. of New York, 220 A.D.2d 317). We have considered the remaining contentions of plaintiff and of defendants-respondents and find them to be without merit.
Order reversed on the law without costs and motion denied. Memorandum: Plaintiff commenced this action to recover damages for personal injuries that she sustained when her stopped vehicle was struck from behind by a vehicle owned by defendant Kandefer Plumbing Heating and driven by defendant Brian C. Martin. Supreme Court erred in granting plaintiff's motion for partial summary judgment on liability. It is well established that 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, Diller v. City of New York Police Dept., 269 A.D.2d 143 [decided Feb. 1, 2000]; Baron v. Murray, 268 A.D.2d 495 [decided Jan. 24, 2000]; see also, Downs v. Toth, 265 A.D.2d 925). The presumption of negligence imposes a duty of explanation with respect to the operation of the rear vehicle ( see, Levine v. Taylor, 268 A.D.2d 566 [decided Jan. 31, 2000], citing Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135, and Gambino v. City of New York, 205 A.D.2d 583).