| Malak v Wynder |
| 2008 NY Slip Op 09042 [56 AD3d 622] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Glen Malak et al., Appellants, v Christopher R. Wynder etal., Defendants, Danielle M. Pascale et al., Respondents, et al., Defendant. (Action No. 1.) Paul J.Babicki et al., Appellants, v Danielle M. Pascale et al., Respondents, et al., Defendants. (ActionNo. 2.) |
—[*1] Leahey & Johnson, P.C., New York, N.Y. (Peter James Johnson, Jr., James P. Tenney, andJoanne Filiberti of counsel), for respondents.
In two related actions to recover damages for personal injuries, etc., (1) the plaintiffs inactions No. 1 and No. 2 appeal, as limited by their brief, from so much of an order of theSupreme Court, Richmond County (Maltese, J.), dated March 9, 2007, as granted that branch ofthe motion of the defendants in actions No. 1 and 2 Danielle Pascale and Margarita Pascalewhich was for summary judgment dismissing the complaints insofar as asserted against them,and (2) the defendant in action No. 1 Paul J. Babicki separately appeals from the same order.
Ordered that the separate appeal by the defendant in action No. 1 Paul J. Babicki is dismissedas abandoned, without costs or disbursements; and it is further,[*2]
Ordered that the order is reversed insofar as appealedfrom by the plaintiffs in actions No. 1 and 2, on the law, with costs, and that branch of the motionof the defendants Danielle Pascale and Margarita Pascale which was for summary judgmentdismissing the complaints insofar as asserted against them is denied.
These related personal injury actions arose out of a four-car chain-reaction collision thatoccurred on the Verrazano-Narrows Bridge on April 10, 2004. Danielle M. Pascale andMargarita Pascale, defendants in both actions, were the operator and owner, respectively, of thethird vehicle. The Supreme Court granted their motion, inter alia, for summary judgmentdismissing the complaint in each action insofar as asserted against them. The court found that thePascale vehicle was rear-ended by the fourth car in the accident and propelled into the secondcar. We reverse.
Vehicle and Traffic Law § 1129 (a) provides that "[t]he driver of a motor vehicle shallnot follow another vehicle more closely than is reasonable and prudent, having due regard for thespeed of such vehicles and the traffic upon and the condition of the highway." Thus, "[v]ehiclestops which are foreseeable under the prevailing conditions, even if sudden and frequent, must beanticipated by the driver who follows, since he or she is under a [statutory] duty . . .to maintain a safe distance between his or her car and the car ahead" (Barberena v BuddEnters., 299 AD2d 305, 306 [2002]). Moreover, a rear-end collision with a stopped orstopping vehicle creates a prima facie case of negligence with respect to the operator of themoving vehicle and imposes a duty on that operator to provide a nonnegligent explanation for thecollision (see Hughes v Cai, 55 AD3d 675 [2008]; Arias v Rosario, 52 AD3d551, 552 [2008]; Ahmad v Grimaldi, 40 AD3d 786, 787 [2007]). Evidence that a vehiclewas rear-ended and propelled into the stopped vehicle in front of it may provide a sufficientnonnegligent explanation (see Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876,877 [2007]).
Here, contrary to the findings of the Supreme Court, there was conflicting evidence as towhether the Pascales' vehicle rear-ended the vehicle in front of it because it was following thatvehicle more closely than was reasonable and prudent, or whether, instead, although it was notfollowing more closely than was reasonable and prudent, it rear-ended the vehicle in front of itbecause it was hit from behind and propelled into that vehicle. Danielle Pascale testified at herdeposition that the vehicle she was operating was struck from behind and propelled into the rearof Henny Malak's vehicle in front of her. In contrast, Paul J. Babicki testified that the vehicle hewas operating was struck by the Pascale vehicle and propelled into the Malak vehicle before heheard the impact of a vehicle striking the Pascale vehicle. Traci Wynder, a passenger inChristopher Wynder's vehicle, the last vehicle in the chain, also testified at a deposition that sheheard an impact before the Wynder vehicle struck the rear of the Pascale vehicle, and Glen Malaktestified that he felt three impacts from behind. Given the existence of a triable issue of fact as totheir negligence, the Pascales were not entitled to summary judgment dismissing the complaintsinsofar as asserted against them (see Omrami v Socrates, 227 AD2d 459 [1996]). Skelos,J.P., Fisher, Dickerson and Belen, JJ., concur. [See 2007 NY Slip Op 30041(U).]