Opinion
885 Index No. 152151/17 Case No. 2022–05638
10-24-2023
Frank MCDOWELL, Plaintiff–Respondent, v. Kristin RODRIGUEZ, Defendant–Appellant, Ean Holdings, LLC, Defendant. Kristin Rodriguez, Third–Party Plaintiff–Appellant, v. Yira De La Espada, Third–Party Defendant.
Carman, Callahan & Ingham, LLP, Farmingdale (James Carman of counsel), for appellant. Chirico Law PLLC, Brooklyn (Vincent Chirico of counsel), for respondent.
Carman, Callahan & Ingham, LLP, Farmingdale (James Carman of counsel), for appellant.
Chirico Law PLLC, Brooklyn (Vincent Chirico of counsel), for respondent.
Kern, J.P., Singh, Gesmer, Scarpulla, O'Neill Levy, JJ.
Order, Supreme Court, New York County (James G. Clynes, J.), entered July 12, 2022, which granted plaintiff's motion for summary judgment on the issue of liability against defendant/third-party plaintiff Kristin Rodriguez, unanimously reversed, on the law, without costs, and the motion denied.
Plaintiff, while a passenger in a vehicle operated by Rodriguez, sustained injuries when Rodriguez struck a vehicle operated by third-party defendant Yira De La Espada. Although plaintiff's motion was not premature, the court should not have granted plaintiff summary judgment on the issue of liability against Rodriguez. Plaintiff failed to make a prima facie showing that the accident was a rear-end collision resulting from Rodriguez's failure to maintain a safe distance behind Espada's vehicle, in violation of Vehicle and Traffic Law § 1129(a) (see generally Baez–Pena v. MM Truck & Body Repair, Inc., 151 A.D.3d 473, 476, 56 N.Y.S.3d 307 [1st Dept. 2017] ). Rather, plaintiff testified that Rodriguez's vehicle came in contact with Espada's vehicle as Rodriguez was turning into an intersection, and plaintiff did not see the Espada vehicle prior to the accident and did not know if it was moving or stopped at the moment of impact. Absent a showing that Rodriguez negligently struck Espada's vehicle due to a failure to maintain a safe distance, plaintiff, even as an innocent passenger, was not entitled to summary judgment (see Campbell v. Mincello, 184 A.D.3d 412, 123 N.Y.S.3d 493 [1st Dept. 2020] ).
Because plaintiff failed to meet his prima facie burden, we need not consider the sufficiency of Rodriguez's papers submitted in opposition to his motion. In any event, the evidence produced by Rodriguez, which included postaccident photographs of the vehicles and a recorded statement from Espada showing that her car was struck in the rear driver side panel, rather than the rear bumper as claimed by plaintiff, raised an issue of fact sufficient to defeat summary judgment (see Pichardo v. Irizarry, 215 A.D.3d 504, 504, 187 N.Y.S.3d 37 [1st Dept. 2023] ; see also Sperling v. Akesson, 104 A.D.3d 840, 841, 961 N.Y.S.2d 529 [2d Dept. 2013] ).