Opinion
15615 Index No. 154550/20 Case No. 2021–01682
03-31-2022
Nicholas SCIOLI, Plaintiff–Respondent, v. Johnny JOSEPH et al., Defendants–Appellants, MTA Bus Company et al., Defendants.
Shafer Partners, LLP, New York (Delsia G. Marshall of counsel), for appellants. Mitchell Dranow, Sea Cliff, for respondent.
Shafer Partners, LLP, New York (Delsia G. Marshall of counsel), for appellants.
Mitchell Dranow, Sea Cliff, for respondent.
Gische, J.P., Oing, Scarpulla, Shulman, Higgitt, JJ.
Order, Supreme Court, New York County (Suzanne J. Adams, J.), entered March 31, 2021, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment on the issue of liability as against defendants Johnny Joseph and Maggies Paratransit Corp. and dismissed their affirmative defenses of comparative fault, culpable conduct, and assumption of risk, unanimously affirmed, without costs.
Plaintiff established prima facie that defendants were negligent by submitting an affidavit that he was stopped at a red traffic light when his vehicle was struck in the rear by a vehicle owned by Maggies Paratransit and operated by Joseph (see Cruz v. Lise, 123 A.D.3d 514, 999 N.Y.S.2d 41 [1st Dept. 2014] ). In opposition, defendants failed to provide a nonnegligent explanation for the accident (see Urena v. GVC Ltd., 160 A.D.3d 467, 467, 75 N.Y.S.3d 7 [1st Dept. 2018] ).
Contrary to defendants’ contention, the discrepant facts between the parties’ affidavits do not warrant a different determination (see Santos v. Booth, 126 A.D.3d 506, 6 N.Y.S.3d 26 [1st Dept. 2015] ). Even if plaintiff's vehicle had stopped short in front of defendants’ vehicle, defendants failed to rebut the inference of negligence created by the rear-end collision by showing that Joseph maintained a safe distance from plaintiff's vehicle before the accident (see Vehicle and Traffic Law § 1129[a] ; Chowdhury v. Matos, 118 A.D.3d 488, 987 N.Y.S.2d 132 [1st Dept. 2014] ; Corrigan v. Porter Cab Corp., 101 A.D.3d 471, 472, 955 N.Y.S.2d 336 [1st Dept. 2012] ).
Defendants’ contention that the emergency doctrine applies in this action, because a pedestrian darting out unexpectedly into the roadway created an emergency situation that caused Joseph to rear-end plaintiff's vehicle, is unavailing. Joseph's affidavit does not set forth how fast his vehicle was traveling before the accident or why his reaction to the alleged emergency was reasonable under the circumstances (see Caristo v. Sanzone, 96 N.Y.2d 172, 174–175, 726 N.Y.S.2d 334, 750 N.E.2d 36 [2001] ; Gutierrez v. Hoyt Transp. Corp., 117 A.D.3d 420, 420–421, 985 N.Y.S.2d 44 [1st Dept. 2014] ; Sosa v. Rehmat, 46 A.D.3d 306, 847 N.Y.S.2d 186 [1st Dept. 2007] ).
Plaintiff's motion was not premature, as Joseph himself knew the relevant facts concerning the accident and would have knowledge of any nonnegligent reason for the collision (see Callahan v. Haji, 189 A.D.3d 610, 611, 134 N.Y.S.3d 707 [1st Dept. 2020] ; Estate of Bachman v. Hong, 169 A.D.3d 436, 437, 92 N.Y.S.3d 281 [1st Dept. 2019] ).