Opinion
2014-01-22
Francisco ROMERO, respondent, v. AL HAAG & SON PLUMBING & HEATING, INC., et al., appellants.
Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (David A. LoRe of counsel), for appellants. Koenigsberg & Associates (Steven N. Feinman, White Plains, N.Y., of counsel), for respondent.
Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (David A. LoRe of counsel), for appellants. Koenigsberg & Associates (Steven N. Feinman, White Plains, N.Y., of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Lewis, J.), dated August 17, 2012, which granted the plaintiff's motion for summary judgment on the issue of liability and denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion for summary judgment on the issue of liability and substituting therefor a provision denying that motion; as so modified, the order is affirmed, without costs or disbursements.
On December 10, 2008, a vehicle operated by the plaintiff was struck by the defendants' vehicle. The plaintiff testified at his deposition that after driving through an intersection, he stopped his vehicle to allow a New York City bus to pull away from the curb in front of him, and that the defendants' vehicle collided with the rear of the plaintiff's vehicle while it was stopped. The defendant driver testified at his deposition that just prior to the alleged accident, the plaintiff's vehicle was swerving to the right and left and stopping and starting repeatedly, and that it appeared that the operator of the vehicle was drunk. At no time did the defendant driver observe a bus. The defendant driver testified that, after the plaintiff's vehicle suddenly accelerated and then stopped short, the front of the defendants' vehicle came in contact with the rear of the plaintiff's vehicle.
The Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability. “[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” (Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726 [internal quotation marks omitted] ). Here, even assuming that the defendant driver failed to maintain a reasonably safe distance and rate of speed while traveling behind the plaintiff's vehicle ( seeVehicle and Traffic Law § 1129[a] ), the deposition testimony of the defendant driver, which was submitted by the plaintiff, raised a triable issue of fact as to whether the plaintiff contributed to the accident by driving in an erratic manner ( see Tutrani v. County of Suffolk, 10 N.Y.3d at 908, 861 N.Y.S.2d 610, 891 N.E.2d 726; Kertesz v. Jason Transp. Corp., 102 A.D.3d 658, 659, 957 N.Y.S.2d 730; Hazzard v. Burrowes, 95 A.D.3d 829, 830, 943 N.Y.S.2d 213). Accordingly, the plaintiff failed to make a prima facie showing of his entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).
The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In opposition to the defendants' prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident ( see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176), the plaintiff raised a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320 at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). BALKIN, J.P., LOTT, AUSTIN and MILLER, JJ., concur.