Summary
granting summary judgment for defendant whose stopped vehicle was rear-ended because plaintiffs failed to rebut the presumption of negligence
Summary of this case from Tenas-Reynard v. Palermo Taxi Inc.Opinion
10-20-2015
Francis PADILLA, et al., Plaintiffs, v. ZULU SERVICES, INC., et al., Defendants. Zulu Services, Inc., et al., Third–Party Plaintiffs–Respondents, v. F.W. Nagel, Third–Party Defendant–Appellant.
Russo, Apoznanski & Tambasco, Melville (Susan J. Mitola of counsel), for appellant. Russo & Toner, LLP, Brooklyn (Stacy R. Seldin of counsel), for respondents.
Russo, Apoznanski & Tambasco, Melville (Susan J. Mitola of counsel), for appellant.
Russo & Toner, LLP, Brooklyn (Stacy R. Seldin of counsel), for respondents.
Opinion Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about April 8, 2014, which, insofar as appealed from, denied the cross motion of third-party defendant F.W. Nagel (Nagel) for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs, and the cross motion granted. The Clerk is directed to enter judgment dismissing the third-party complaint.
It is well settled that “a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle” (Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept.2010] ). Here, Nagel demonstrated his entitlement to judgment as a matter of law by submitting evidence showing that his vehicle was stopped when it was rear-ended by a vehicle owned by defendant/third-party plaintiff Zulu Services, Inc. (Zulu Services) and operated by defendant/third-party plaintiff Yodeny Beltran (Beltran); plaintiffs were passengers in the vehicle driven by Beltran.
In opposition, Zulu Services and Beltran failed to raise a triable issue of fact. Their contention that Nagel stopped short is insufficient to rebut the presumption of negligence (see Santos v. Booth, 126 A.D.3d 506, 6 N.Y.S.3d 26 [1st Dept.2015] ; Cruz v. Lise, 123 A.D.3d 514, 999 N.Y.S.2d 41 [1st Dept.2014] ). Although Beltran had the duty to keep a safe distance between his vehicle and Nagel's vehicle, he never explained why he failed to do so despite his testimony that he was watching Nagel's vehicle before the accident happened (see Corrigan v. Porter Cab Corp., 101 A.D.3d 471, 472, 955 N.Y.S.2d 336 [1st Dept.2012] ).
GONZALEZ, P.J., MAZZARELLI, RICHTER, MANZANET–DANIELS, JJ., concur.