Opinion
No. 2023-09704 Index No. 523788/19
10-30-2024
Victor M. Trinidad, Jr., plaintiff-respondent, v. Dea Llapa, et al., defendants-respondents, Manjit Kaur, appellant.
Nancy L. Isserlis (The Zweig Law Firm, P.C., Cedarhurst, NY (Jonah S. Zweig of counsel), for appellant.
Nancy L. Isserlis (The Zweig Law Firm, P.C., Cedarhurst, NY (Jonah S. Zweig of counsel), for appellant.
COLLEEN D. DUFFY, J.P., PAUL WOOTEN, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Manjit Kaur appeals from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated September 7, 2023. The order denied that defendant's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against her.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff commenced this action against the defendants to recover damages for personal injuries that he alleged he sustained in January 2019 when he was a passenger in a vehicle operated by the defendant Manjit Kaur that was struck in the rear by a vehicle operated by the defendant Dea Llapa and owned by the defendant Rezearta Talani. Kaur moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against her, contending that Llapa was solely at fault in the happening of the accident. In an order dated September 7, 2023, the Supreme Court denied Kaur's motion. Kaur 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; see Vehicle and Traffic Law § 1129[a]; Quintanilla v Mark, 210 A.D.3d 713). "'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 was not at fault in the happening of the subject accident'" (Napier v Gleberman, 212 A.D.3d 829, 830, quoting Martinez v Allen, 163 A.D.3d 951, 951). "'[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, quoting Tutrani v County of Suffolk, 64 A.D.3d 53, 59-60; see Gomez v Pechman, 223 A.D.3d 711, 712).
Kaur, who submitted an affidavit and transcripts of the deposition testimony of the plaintiff and of Llapa in support of her motion, failed to establish her prima facie entitlement to judgment as a matter of law. That evidence conflicted as to the facts surrounding the accident, and triable issues of fact exist as to whether Kaur's vehicle was moving or stopped at the time of the accident, whether Kaur was distracted by her cell phone just prior to the accident, and whether Kaur was comparatively at fault in the happening of the accident (see Houslin v New York City Tr. Auth., 212 A.D.3d 790; Caldwell v Town of Huntington, 206 A.D.3d 875, 876). Since Kaur failed to meet her initial burden as the movant, we need not consider the sufficiency of the opposition papers (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324).
DUFFY, J.P., WOOTEN, WARHIT and TAYLOR, JJ., concur.