| Ramadan v Maritato |
| 2008 NY Slip Op 03923 [50 AD3d 1620] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| Irad Ramadan et al., Appellants, v Patricia Maritato et al.,Respondents. |
—[*1] Brown & Kelly, LLP, Buffalo (Lisa T. Sofferin of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), enteredNovember 9, 2007 in a personal injury action. The order denied plaintiffs' motion for partialsummary judgment on the issue of negligence.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries they allegedlysustained when a vehicle driven by Irad Ramadan (plaintiff) in which plaintiff Joyal Greene wasa passenger was rear-ended by a vehicle owned by defendant Patricia Maritato and driven byAngelo D. Maritato (defendant). Supreme Court properly denied plaintiffs' motion for partialsummary judgment on the issue of defendant's negligence. It is undisputed that plaintiffs' vehiclewas stopped at the time of the rear-end collision, and thus plaintiffs established a prima faciecase of negligence on the part of defendant (see Herdendorf v Polino, 43 AD3d 1429 [2007]). Viewing theevidence in the light most favorable to defendants (see generally Ruzycki v Baker, 301AD2d 48, 50 [2002]), however, we conclude that defendants rebutted the presumption ofnegligence by providing a nonnegligent explanation for the collision and thus raised an issue offact whether the actions of plaintiff contributed to the accident (see generally id. at49-50; Heal v Liszewski, 294 AD2d 911 [2002]). According to defendant's depositiontestimony, which was submitted by plaintiffs in support of their motion and by defendants inopposition to the motion, defendant approached a red light and came to a complete stop behindplaintiffs' vehicle prior to the collision. Defendant further testified that, when the light turnedgreen, plaintiffs' vehicle moved forward a few feet before stopping again, at which timedefendant's vehicle "tapped" the bumper of plaintiffs' vehicle. The record establishes that theaccident occurred early on a Sunday afternoon, and there is no dispute that the traffic was notheavy (cf. Herdendorf, 43 AD3d at 1429-1430; Ruzycki, 301 AD2d at 50). Wethus conclude on the record before us that the court properly denied plaintiffs' motion.Present—Scudder, P.J., Martoche, Smith, Lunn and Peradotto, JJ.