Opinion
2012-12-5
XIAN HONG PAN, et al., plaintiffs-respondents, v. Michael BUGLIONE, defendant-respondent, Yufen Wang, et al., appellants.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for appellants. Steven Louros, New York, N.Y., for plaintiffs-respondents.
Cheven, Keely & Hatzis, New York, N.Y. (William B. Stock of counsel), for appellants. Steven Louros, New York, N.Y., for plaintiffs-respondents.
Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for defendant-respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
In an action to recover damages for personal injuries, etc., the defendants Yufen Wang and George Lee appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Markey, J.), dated September 16, 2011, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against Yufen Wang and George Lee is granted.
The injured plaintiff Xian Hong Pan was a passenger in a vehicleoperated by the defendant Yufen Wang and owned by the defendant George Lee, which was struck from the rear by a vehicle owned and operated by the defendant Michael Buglione in the westbound HOV lane of the Long Island Expressway. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendants. Yufen Wang and Lee moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that Buglione alone was negligent in causing this accident. The Supreme Court denied that motion, and this appeal ensued.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision ( see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726;Zdenek v. Safety Consultants, Inc., 63 A.D.3d 918, 883 N.Y.S.2d 57;Ramirez v. Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381;Jumandeo v. Franks, 56 A.D.3d 614, 867 N.Y.S.2d 541). The claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the following vehicle ( see Kastritsios v. Marcello, 84 A.D.3d 1174, 923 N.Y.S.2d 863;Franco v. Breceus, 70 A.D.3d 767, 895 N.Y.S.2d 152;Mallen v. Su, 67 A.D.3d 974, 890 N.Y.S.2d 79;Rainford v. Han, 18 A.D.3d 638, 795 N.Y.S.2d 645;Russ v. Investech Secs., 6 A.D.3d 602, 775 N.Y.S.2d 867).
Here, Yufen Wang and Lee established their prima facie entitlement to judgment as a matter of law by submitting evidence that Buglione's vehicle struck their vehicle in the rear as it was slowing down for the traffic condition ahead of it. In opposition, the plaintiffs and Buglione failed to submit evidence sufficient to raise a triable issue of fact as to whether Yufen Wang contributed to the accident. In his deposition, Buglione described the traffic condition as stop and go, and testified that he saw that the traffic ahead of Yufen Wang's vehicle was slowing down when Yufen Wang applied her brake ( see Kastritsios v. Marcello, 84 A.D.3d 1174, 923 N.Y.S.2d 863;Jumandeo v. Franks, 56 A.D.3d 614, 867 N.Y.S.2d 541;Arias v. Rosario, 52 A.D.3d 551, 860 N.Y.S.2d 168;Harrington v. Kern, 52 A.D.3d 473, 859 N.Y.S.2d 480). Accordingly, the Supreme Court should have granted the motion of Yufen Wang and Lee for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.