Opinion
2014-11-19
Christopher N. GALLO, appellant, v. Sapna M. JAIRATH, et al., respondents.
Daniel E. Rausher, Brooklyn, N.Y., for appellant.
Affirmed as modified.
Daniel E. Rausher, Brooklyn, N.Y., for appellant. RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), dated August 8, 2013, as denied that branch of his cross motion which was for summary judgment on the issue of liability.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability against the defendants Sapna M. Jairath, Surjit Jairath, and Ramnik Jairath, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff payable by the defendants Sapna M. Jairath, Surjit Jairath, and Ramnik Jairath.
The plaintiff alleges that he was injured when, while she was a passenger in a vehicle operated by the defendant Michael R. Calafiore, Calafiore's vehicle was struck in the rear by a vehicle operated by the defendant Sapna M. Jairath and owned by the defendants Surjit Jairath and Ramnik Jairath (hereinafter collectively the Jairath defendants). After issue was joined, the plaintiff cross-moved, inter alia, for summary judgment on the issue of liability. The Supreme Court denied that branch of the motion. We modify.
When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle ( see Taing v. Drewery, 100 A.D.3d 740, 954 N.Y.S.2d 175; Ortiz v. Hub Truck Rental Corp., 82 A.D.3d 725, 918 N.Y.S.2d 156; Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659; see also Vehicle and Traffic Law § 1129[a] ). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident ( see Maragos v. Sakurai, 92 A.D.3d 922, 923, 938 N.Y.S.2d 908; Balducci v. Velasquez, 92 A.D.3d 626, 628, 938 N.Y.S.2d 178; Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710). “ ‘A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ ” ( Volpe v. Limoncelli, 74 A.D.3d 795, 795, 902 N.Y.S.2d 152, quoting Klopchin v. Masri, 45 A.D.3d 737, 737, 846 N.Y.S.2d 311; see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726; Williams v. Spencer–Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157; Staton v. Ilic, 69 A.D.3d 606, 892 N.Y.S.2d 486).
Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law against the Jairath defendants by submitting, inter alia, his own affidavit and the police accident report, which both described the circumstances of the accident. This evidence demonstrated that the Calafiore vehicle, in which the plaintiff was a passenger, was struck in the rear by the Jairath vehicle because Sapna M. Jairath failed to brake in time ( see Williams v. Spencer–Hall, 113 A.D.3d at 760, 979 N.Y.S.2d 157; Medina v. Rodriguez, 92 A.D.3d at 851, 939 N.Y.S.2d 514; Volpe v. Limoncelli, 74 A.D.3d at 795, 902 N.Y.S.2d 152). In opposition, the Jairath defendants failed to raise a triable issue of fact. The right of the plaintiff, as a nonculpable passenger, to summary judgment on the complaint on the issue of liability is not restricted by possible issues of comparative negligence between the defendant drivers ( see CPLR 3212[g]; Anzel v. Pistorino, 105 A.D.3d 784, 786, 962 N.Y.S.2d 700; Medina v. Rodriguez, 92 A.D.3d 850, 850, 939 N.Y.S.2d 514; Garcia v. Tri–County Ambulette Serv., 282 A.D.2d 206, 207, 723 N.Y.S.2d 163; Johnson v. Phillips, 261 A.D.2d 269, 272, 690 N.Y.S.2d 545; see also Conigliaro v. Premier Poultry, Inc., 67 A.D.3d 954, 955, 888 N.Y.S.2d 779). As the plaintiff correctly contends, the affirmation of counsel for the Jairath defendants, standing alone, is insufficient to raise a triable issue of fact ( see CPLR 3212[b]; Roche v. Hearst Corp., 53 N.Y.2d 767, 769, 439 N.Y.S.2d 352, 421 N.E.2d 844; see also Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 229, 413 N.Y.S.2d 141, 385 N.E.2d 1068). Therefore, the Supreme Court should have granted that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability against the Jairath defendants.
The Supreme Court properly denied that branch of the plaintiff's cross motion which was for summary judgment on the issue of liability against Calafiore, since the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law regarding Calafiore's liability in causing or contributing to the accident ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Therefore, we need not consider the adequacy of the papers submitted in opposition to that branch of the cross motion.