| Vavoulis v Adler |
| 2007 NY Slip Op 06985 [43 AD3d 1154] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Kosmas J. Vavoulis, Respondent, v Cheryl M. Adler,Defendant, and Gregory S. Salem et al., Appellants. |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Andrew Wiese of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants Gregory S. Salem andHarvey M. Salem appeal, as limited by their brief, from so much of an order of the SupremeCourt, Suffolk County (Baisley, J.), entered January 17, 2006, as granted that branch of theplaintiff's motion which was for summary judgment against them on the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment against the defendants GregoryS. Salem and Harvey M. Salem on the issue of liability is denied.
This case arises from an automobile accident involving three vehicles. It is undisputed thatthe plaintiff was stopped at a red light when his vehicle was struck from behind by a vehicleoperated by the defendant Cheryl M. Adler. The Adler vehicle was struck from behind by avehicle owned by the defendant Harvey M. Salem and operated by the defendant Gregory S.Salem.
A driver of a vehicle approaching another vehicle from the rear is required to maintain areasonably safe rate of speed and control over his or her vehicle and to exercise reasonable careto avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a];Macauley v ELRAC, Inc., 6 AD3d584 [2004]; Chepel v Meyers, 306 AD2d 235 [2003]). A rear-end collision with astopped vehicle creates a prima facie case of negligence with respect to the moving vehicle,requiring the operator of the moving vehicle to come forward with an adequate nonnegligentexplanation for the [*2]accident (see Bustillo v Matturro,292 AD2d 554 [2002]; Vecchio v Hildebrand, 304 AD2d 749 [2003]; Levine vTaylor, 268 AD2d 566 [2000]).
The failure of the operator of the moving vehicle to come forward with an adequateexplanation establishes the negligence of that operator as a matter of law, and is ordinarilysufficient for an award of summary judgment (see Russ v Investech Sec., 6 AD3d 602 [2004]; Vecchio vHildebrand, 304 AD2d 749 [2003]; Bustillo v Matturro, 292 AD2d 554 [2002]). Theappellants failed to come forward with an adequate explanation in this case. However, in amultiple-vehicle accident, where, as here, there is a question of fact as to the sequence of thecollisions, it cannot be said as a matter of law that the negligence of the operator of the lastvehicle in the line of vehicles was a proximate cause of the injuries to an occupant of the leadvehicle (see Geschwind v Hoffman, 285 AD2d 448 [2001]; see also Hudson vCole, 264 AD2d 439 [1999]; Omrami v Socrates, 227 AD2d 459 [1996];Cofrancesco v Murino, 225 AD2d 648 [1996]; cf. Harris v Ryder, 292 AD2d 499[2002]).
In this case, the plaintiff testified at his deposition that he felt two separate impacts, a "coupleof seconds" apart and, while both impacts were characterized by the plaintiff as heavy, he thoughtthe first one was heavier. The plaintiff also testified that although he had been stopped at the lightfor approximately one minute, he was not aware of, and did not see, any vehicles stopped behindhim. The defendant Gregory S. Salem testified that the Adler vehicle was between 100 and 200feet in front of him when he first saw it, but he did not remember if the Adler vehicle wasmoving when he first saw it. He also testified he did not recall seeing the brake lights on theAdler vehicle and he was not aware of the Adler vehicle being in motion at the time of impact.Adler has not appeared in this action.
The record thus contains evidence from which a jury could find Adler was negligent inaddition to the appellants' negligence. If that finding is made, the jury would then have todetermine whether both acts of negligence were concurrent proximate causes of the plaintiff'sinjuries, or only one or the other was the proximate cause (see PJI3d 2:70]; Sheehan vCity of New York, 40 NY2d 496 [1976]; Martinez v State of New York, 29 AD3d 651, 652 [2006]). As aquestion of fact exists as to whether the appellants' negligence was a proximate cause of theplaintiff's injuries, the plaintiff's motion for summary judgment against the appellants on theissue of liability should have been denied. Prudenti, P.J., Fisher, Lifson and Angiolillo, JJ.,concur.