| Smith v Seskin |
| 2008 NY Slip Op 02136 [49 AD3d 628] |
| March 11, 2008 |
| Appellate Division, Second Department |
| Andre Smith, Respondent, v Steven E. Seskin et al.,Respondents, and Donald Martino et al., Appellants. |
—[*1] James G. Bilello & Associates, Westbury, N.Y. (Patricia McDonagh and Jerry Christoforatosof counsel), for appellant Andrzej S. Rytel. Leahey & Johnson, P.C., New York, N.Y. (Peter J. Johnson, Jr., of counsel), fordefendants-respondents Joseph B. Palascak and Ahsan U. Zafar.
In an action to recover damages for personal injuries, the defendants Donald Martino andAndrzej S. Rytel separately appeal, as limited by their respective briefs, from so much of an orderof the Supreme Court, Kings County (Schneier, J.), dated October 13, 2006, as denied theirrespective cross motions for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and the respective cross motions of the defendants Andrzej S. Rytel and Donald Martino forsummary judgment dismissing the complaint and all cross claims insofar as asserted against themare granted.
The plaintiff Andre Smith allegedly sustained injuries when the car in which he was apassenger was involved in a five-car collision on the Verrazano Narrows Bridge with carsoperated and/or owned by the defendants. Based on the parties' deposition testimony, it isundisputed that the car operated and owned by the defendant Andrzej S. Rytel was stopped whenit was hit in the [*2]rear by a car owned and operated by thedefendant Donald Martino, and pushed forward into the car operated by the defendant Steve E.Seskin and owned by the defendant Roselinda Seskin. Martino's car was stopped when it was hitin the rear and propelled into Rytel's car by the car operated and owned by the defendant John J.James, in which Smith was a passenger. James's car was hit in the rear by the car operated by thedefendant Joseph B. Palascak and owned by the defendant Ahsan U. Zafar. Prior to thischain-reaction collision, Rytel and Martino each were able to bring their car to a complete stopwithout coming into contact with the cars in front of them.
The Seskins moved for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them, and Rytel and Martino cross-moved for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them. The SupremeCourt granted the Seskins' motion but denied the cross motions without explanation.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the rearmost vehicle (see Ahmad v Grimaldi, 40 AD3d786 [2007]; Sabbagh v Shalom, 289 AD2d 469 [2001]). Rytel and Martinoestablished their prima facie entitlement to judgment as a matter of law by presenting evidencethat the cars they were operating were stopped prior to being hit in the rear by the cars behindthem (see Bournazos v Malfitano, 275 AD2d 437, 438 [2000]; Elezovic vHarrison, 292 AD2d 416, 417 [2002]). The papers submitted in opposition to the crossmotions failed to raise a triable issue of fact as to whether negligence on the part of Rytel and/orMartino contributed to the collision (seeCampbell v City of Yonkers, 37 AD3d 750, 751 [2007]; Belitsis v Airborne ExpressFrgt. Corp., 306 AD2d 507, 508 [2003]; Bournazos v Malfitano, 275 AD2d 437[2000]). Accordingly, the cross motions of Rytel and Martino for summary judgment shouldhave been granted. Spolzino, J.P., Angiolillo, Balkin and Leventhal, JJ., concur.