Opinion
2021–04456 Index No. 524947/19
08-09-2023
John MCAVOY, plaintiff-respondent, v. Hasib H. EIGHAMRI, appellant, Jian Liang Chen, et al., defendants-respondents.
Nancy L. Isserlis (The Zweig Law Firm, P.C., Woodmere, NY [Jonah S. Zweig ], of counsel), for appellant. Scahill Law Group, P.C., Bethpage, NY (Keri A. Wehrheim and Gerard Ferrara of counsel), for defendants-respondents.
Nancy L. Isserlis (The Zweig Law Firm, P.C., Woodmere, NY [Jonah S. Zweig ], of counsel), for appellant.
Scahill Law Group, P.C., Bethpage, NY (Keri A. Wehrheim and Gerard Ferrara of counsel), for defendants-respondents.
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Hasib H. Eighamri appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated June 10, 2021. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs payable to the defendants-respondents.
On September 23, 2019, the plaintiff was a passenger in a taxi operated by the defendant Hasib H. Eighamri. The taxi was struck in the rear by a vehicle operated by the defendant Jian Liang Chen (hereinafter Chen) and owned by the defendant Tong Shen Trading, Inc. (hereinafter TST). In November 2019, the plaintiff commenced this action to recover damages for personal injuries. Eighamri moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him, contending that Chen's negligence was the sole proximate cause of the accident. The Supreme Court, inter alia, denied the motion. Eighamri appeals.
"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" ( Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ; Quintanilla v. Mark, 210 A.D.3d 713, 177 N.Y.S.3d 687 ). " ‘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 is not at fault in the happening of the subject accident’ " ( Napier v. Gleberman, 212 A.D.3d 829, 830, 183 N.Y.S.3d 140, quoting Martinez v. Allen, 163 A.D.3d 951, 951, 82 N.Y.S.3d 130 ). " ‘[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, 82 N.Y.S.3d 130, quoting Tutrani v. County of Suffolk, 64 A.D.3d 53, 59–60, 878 N.Y.S.2d 412 ).
Here, in support of his motion, Eighamri submitted, inter alia, his own affidavit, which stated that his vehicle was fully stopped for a red traffic light when it was struck in the rear by the vehicle operated by Chen and owned by TST. This evidence was sufficient to establish Eighamri's prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against him (see Robinson v. New York City Tr. Auth., 213 A.D.3d 786, 787–788, 183 N.Y.S.3d 154 ; Napier v. Gleberman, 212 A.D.3d at 830, 183 N.Y.S.3d 140 ).
In opposition, Chen and TST raised a triable issue of fact as to whether Eighamri was also at fault in the happening of the accident with evidence that Eighamri's vehicle accelerated in an attempt to beat a yellow traffic light and then came to a sudden stop in the middle of the intersection while the traffic light was still yellow (see Thompson v. New York City Tr. Auth., 208 A.D.3d 815, 818, 175 N.Y.S.3d 66 ; Martinez v. Allen, 163 A.D.3d at 952, 82 N.Y.S.3d 130 ; Tutrani v. County of Suffolk, 64 A.D.3d at 59–60, 878 N.Y.S.2d 412 ).
The contention of Chen and TST that the motion was premature is without merit (see Quintanilla v. Mark, 210 A.D.3d at 715, 177 N.Y.S.3d 687 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 852, 965 N.Y.S.2d 559 ).
Accordingly, the Supreme Court properly denied Eighamri's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against him.
CONNOLLY, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.