Opinion
985 CA 18–00612
09-28-2018
Tiroui MACRI and Thomas Macri, Plaintiffs–Respondents, v. Joseph M. KOTRYS, Defendant–Appellant.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JEFFREY SENDZIAK OF COUNSEL), FOR DEFENDANT–APPELLANT. GROSS SHUMAN P.C., BUFFALO (SARAH P. RERA OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JEFFREY SENDZIAK OF COUNSEL), FOR DEFENDANT–APPELLANT.
GROSS SHUMAN P.C., BUFFALO (SARAH P. RERA OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part with respect to the issue of negligence and as modified the order is affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Tiroui Macri (plaintiff) when the vehicle in which she was a passenger was rear-ended by a vehicle driven by defendant. Supreme Court thereafter granted plaintiffs' motion for partial summary judgment on the issue of negligence and dismissing defendant's first and fifth affirmative defenses. Defendant now appeals. Preliminarily, we note that defendant has abandoned any challenge to the court's dismissal of his first and fifth affirmative defenses (see Mata v. Gress, 17 A.D.3d 1058, 1058, 794 N.Y.S.2d 239 [4th Dept. 2005] ; Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 [4th Dept. 1994] ). We agree with defendant, however, that the court erred in granting summary judgment in plaintiffs' favor on the issue of negligence, and we therefore modify the order accordingly.
"It is well settled 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 ... In order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a non[ ]negligent explanation for the collision ... One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle ..., and such an explanation is sufficient to overcome the inference of negligence and preclude an award of summary judgment" ( Tate v. Brown, 125 A.D.3d 1397, 1398, 3 N.Y.S.3d 826 [4th Dept. 2015] [internal quotation marks omitted]; see Brooks v. High St. Professional Bldg., Inc., 34 A.D.3d 1265, 1266, 825 N.Y.S.2d 330 [4th Dept. 2006] ; Chepel v. Meyers, 306 A.D.2d 235, 237, 762 N.Y.S.2d 95 [2d Dept. 2003] ). Here, defendant averred that he was traveling behind the vehicle in which plaintiff was a passenger when it stopped suddenly at a green light and that, despite his efforts, he could not stop in time to avoid a collision. Plaintiff offered a contrary account in her affidavit. Thus, there is an issue of fact sufficient to defeat plaintiffs' motion with respect to the issue of negligence (see Tate, 125 A.D.3d at 1398–1399, 3 N.Y.S.3d 826 ; Mata, 17 A.D.3d at 1059, 794 N.Y.S.2d 239 ).
Finally, we note that the portions of defendant's deposition upon which plaintiffs rely are outside the record on appeal and have not been considered (see Eastern Concrete Materials, Inc./NYC Concrete Materials v. DeRosa Tennis Contrs., Inc., 139 A.D.3d 510, 512, 33 N.Y.S.3d 164 [1st Dept. 2016] ; Kanter v. Pieri, 11 A.D.3d 912, 913, 783 N.Y.S.2d 181 [4th Dept. 2004] ).