Opinion
No. 2022-06285 Index No. 525000/19
03-20-2024
Rubby Laureano, plaintiff-respondent, v. EAN Holdings, LLC, et al., appellants, Jose A. Suci III, et al., defendants-respondents.
Peknic, Peknic & Schaefer, LLC, Long Beach, NY (Catherine Papandrew of counsel), for appellants. Cherny & Podolsky, PLLC, Brooklyn, NY (Biana L. Mashevich of counsel), for plaintiff-respondent Rubby Laureano. James F. Butler, Jericho, NY (Nancy S. Goodman of counsel), for defendants-respondents Jose A. Suci, III, and Arias Masiel Acosta.
Peknic, Peknic & Schaefer, LLC, Long Beach, NY (Catherine Papandrew of counsel), for appellants.
Cherny & Podolsky, PLLC, Brooklyn, NY (Biana L. Mashevich of counsel), for plaintiff-respondent Rubby Laureano.
James F. Butler, Jericho, NY (Nancy S. Goodman of counsel), for defendants-respondents Jose A. Suci, III, and Arias Masiel Acosta.
VALERIE BRATHWAITE NELSON, J.P. PAUL WOOTEN LILLIAN WAN LAURENCE L. LOVE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants EAN Holdings, LLC, Elrac, LLC, and Adrianna Marie Legoff appeal from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated March 7, 2022. The order, insofar as appealed from, granted that branch of the motion of the defendants Jose A. Suci III, and Arias Masiel Acosta which was for summary judgment dismissing all cross-claims insofar as asserted against them and granted the plaintiff's motion for summary judgment on the issue of liability against the defendants EAN Holdings, LLC, Elrac, LLC, and Adrianna Marie Legoff and dismissing their affirmative defense alleging comparative negligence.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and that branch of the motion of the defendants Jose A. Suci III, and Arias Masiel Acosta which was for summary judgment dismissing all cross-claims insofar as asserted against them and the plaintiff's motion for summary judgment on the issue of liability against the defendants EAN Holdings, LLC, Elrac, LLC, and Adrianna Marie Legoff and dismissing their affirmative defense alleging comparative negligence are denied.
A vehicle operated by the defendant Adrianna Marie Legoff (hereinafter the appellant driver) and owned by the defendants EAN Holdings, LLC, and Elrac, LLC (hereinafter collectively the appellants) struck the rear of a vehicle owned by the defendant Jose A. Suci III, and allegedly operated by the defendant Arias Masiel Acosta (hereinafter together the defendants). The plaintiff commenced this action against the defendants and the appellants to recover damages for personal injuries that he allegedly sustained as a result of the accident. The appellants answered and asserted a cross-claim against the defendants for contribution. The defendants moved, inter alia, for summary judgment dismissing all cross-claims insofar as asserted against them. The plaintiff moved for summary judgment on the issue of liability against the appellants and dismissing their affirmative defense alleging comparative negligence. In an order dated March 7, 2022, the Supreme Court granted the plaintiff's motion and that branch of the defendants' motions. This appeal ensued.
"'A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle'" (McAvoy v Eighamri, 219 A.D.3d 604, 605; Nsiah-Ababio v Hunter, 78 A.D.3d 672, 672; see Vehicle and Traffic Law § 1129[a]). "'There can be more than one proximate cause of an accident, and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident'" (Napier v Gleberman, 212 A.D.3d 829, 830, quoting Martinez v Allen, 163 A.D.3d 951, 951). "'[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision'" (Martinez v Allen, 163 A.D.3d at 951-952, quoting Tutrani v County of Suffolk, 64 A.D.3d 53, 59-60).
Here, in support of their motion, the defendants submitted, among other things, an affidavit from Acosta, in which he averred that he had been operating the defendants' vehicle, which was stopped for approximately 30 seconds due to the traffic conditions ahead when it was struck in the rear by the appellants' vehicle. This evidence was sufficient to establish the defendants' prima facie entitlement to judgment as a matter of law dismissing all cross-claims insofar as asserted against them (see McAvoy v Eighamri, 219 A.D.3d at 605; Thompson v New York City Tr. Auth., 208 A.D.3d 815, 818).
In opposition, the appellants raised triable issues of fact as to whether Acosta was operating the defendants' vehicle at the time of the accident and whether the operator of the defendants' vehicle proximately caused the accident by coming to a sudden stop in the middle of the block for no apparent reason when there were no vehicles traveling in front of it (see Thompson v New York City Tr. Auth., 208 A.D.3d at 818; Salako v Nassau Inter-County Express, 131 A.D.3d 687; Kertesz v Jason Transp. Corp., 102 A.D.3d 658, 659). The uncertified police accident report submitted by the defendants in support of their motion was inadmissible (see Yassin v Blackman, 188 A.D.3d 62). The defendants' contention that the appellant driver contradicted her prior statement to the police in her affidavit is not supported by admissible evidence, and any alleged discrepancies in her affidavit raised a credibility issue which must be submitted to a jury (see Elusma v Jackson, 186 A.D.3d 1326, 1328; Pilgrim v Vishwanathan, 151 A.D.3d 769, 771).
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries (see Rodriguez v City of New York, 31 N.Y.3d 312; Hall v Powell, 183 A.D.3d 576, 577). Here, the plaintiff established his entitlement to judgment as a matter of law by demonstrating, prima facie, that the appellant driver was negligent in striking the rear of the defendants' vehicle, in which the plaintiff was a passenger, when it was stopped due to the traffic conditions ahead (see Lopez v Suggs, 186 A.D.3d 589, 590; Cortese v Pobejimov, 136 A.D.3d 635, 636), and that the plaintiff was an innocent passenger who did not contribute to the happening of the accident (see Lopez v Suggs, 186 A.D.3d at 590; Balladares v City of New York, 177 A.D.3d 942, 944).
In opposition, the appellants raised triable issues of fact as to whether the plaintiff was occupying the defendants' vehicle at the time of the accident, whether this accident proximately caused the plaintiff's injuries (see Hamdamova v New Dawn Tr., LLC, 163 A.D.3d 786, 787; Jackson v Trust, 103 A.D.3d 851), and, as discussed above, whether the operator of the defendants' vehicle proximately caused the accident by coming to a sudden stop in the middle of the block for no apparent reason when there were no vehicles traveling in front of it.
Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing all cross-claims insofar as asserted against them and should have denied the plaintiff's motion for summary judgment on the issue of liability against the appellants and dismissing their affirmative defense alleging comparative negligence.
In light of our determination, it is not necessary to reach the parties' remaining contentions.
BRATHWAITE NELSON, J.P., WOOTEN, WAN and LOVE, JJ., concur.