Opinion
Index No. 56434/2018 Motion Sequence No. 1
09-09-2019
WILSON LAAZ, Plaintiff, v. H. TISHELMAN-CHARNY and CALEB K. CHARNY, Defendants.
Jason B. Kessler Esq. Law Officers of Jason B. Kessler PC Attorney jar Plaintiff Law Office of John Trop Attorneys/or Defendants
Unpublished Opinion
Jason B. Kessler Esq. Law Officers of Jason B. Kessler PC Attorney jar Plaintiff
Law Office of John Trop Attorneys/or Defendants
DECISION AND ORDER (SUMMARY JUDGMENT ON LIABILITY)
HON. JANET C. MALONE JUSTICE
The following papers numbered 1 were read in deciding the unopposed motion for summary judgment filed by Plaintiff Wilson Laaz:
Papers Numbered
Notice of Motion/Affirmation in Support of Jason B. Kessler. Esq./Exhibits 1-5/ Memorandum of Law 1
It is well settled that when a moving vehicle rear-ends a stopped vehicle, a prima facie case of liability is created against the operator of the moving vehicle unless the operator of the moving vehicle can demonstrate, in evidentiary form, a non-negligent explanation. See, Niyazov v. Bradford 13 A.D.3d 501 (2d Dept. 2004), McGregor v. Mamo, 295 A.D.2d 487 (2d Dept. 2002), and McKeough v. Rogak, 288 AJD.2d 196 (2d Dept. 2001); see also. Affirmation in Support of Jason B. Kessler Esq. at paragraphs 14-16 and Memorandum of Law.
Accordingly. Plaintiff Wilson Laaz's motion for summary judgment on the issue of liability is granted against Defendants H. Tishelman-Charny and Caleb K. Charny pursuant to CPLR R 3212(e).
In this negligence action commenced by Plaintiff on April 25, 2018 it is alleged that on December 1, 2016 at approximately 6:00 p.m.. Plaintiff Wilson Laaz was operating a bus traveling north on Main Street, in the Village of Mount Kisco. State of New York, when the vehicle owned by Caleb K. Charny and operated by Defendant H. Tishelman-Charny rear-ended Plaintiffs vehicle that was stopped at a red light ai the intersection of Main Street and South Bedford Road when Defendant II. Tishelman-Charny looked down to change the music on his phone. See, Affirmation in Support of Jason B. Kessler, Esq. at paragraphs 3 and 19; see also. Summons and Verified Complaint at paragraphs 2, 3, 6-10. Transcript of Examination Before Trial of Wilson Laaz dated October 25, 2018 at page 11 lines 4-22, page 12 lines 2-14. Transcript of Examination Before Trial of H. Tishelman-Charny dated January 10, 2019 at page 27 lines 7-13, and Police Accident Report as Exhibits 1. 3. 4, and 5.
Issue was joined on June 12. 2018, a deposition of Plaintiff was held on October 25, 2018 and a deposition of Defendant H. Tishelman-Charny was held on January 10. 2019. To the extent Defendant H. Tishelman-Charny does not rebut and or oppose Plaintiffs sworn testimony that while stopped at a red light, the bus he was operating was struck in the rear by the vehicle operated by Defendant H. Tishelman-Chamy, a prima facie case of liability is created against Defendant H. Tishelman-Charny. See, CPLR R 3212(b). Zuckerman v. New York, 49 N.Y.2d 557 (1980), and Niyazov v. Bradford, 13 A.D.3d 501 (2d Dept. 2004); see also. Answer. Transcript of Examination Before Trial of Wilson Laaz dated October 25. 2018 at page 11 lines 4-22, page 12 lines 2-14. and Transcript of Examination Before Trial of H. Tishelman-Charny dated January 10, 2019 as Exhibits 2-4 and Memorandum of Law.
As the operator of a motor vehicle. Defendant H. Tishelman-Charny had a duty to maintain a safe distance between his vehicle and the cars in front of him and to be aware of the speed of such vehicles and traffic conditions, including vehicle stoppages. See. Vehicle and Traffic Law § 1129(a), Young v. New York, 113 A.D.2d 833, (2d Dept. 1985) and Silberman v. Surrey Cadillac Limousine Serv., Inc., 109 A.D.2d 833 (2d Dept. 1985).
Defendant Caleb K. Charny can also be held liable as such Defendant does not oppose that Defendant H. Tishelman-Charny operated the vehicle with the permission and consent of owner Defendant Caleb K. Charny. See, Vehicle and Traffic Law § 388(1) and Sarine v. American Lumbermen's Mm. Casually Co.. 258 A.D. 653 (2d Dept. 1940) (holding the owner's liability "is derivative and is akin to that imposed on a master for the negligent acts of his servant under the doctrine of respondent superior'").
Therefore, Plaintiff Wilson Laaz's motion for summary judgment on the issue of liability is granted against Defendants H. Tishelman-Charny and Caleb K. Charny. The Parties shall appear before the Settlement Conference Part on October 8, 2019 at 9:15 a.m.. Courtroom 1600.
This constitutes the Decision and Order of this Court.
To the extent not addressed, the remaining relief is denied.