| Vespe v Kazi |
| 2009 NY Slip Op 03601 [62 AD3d 408] |
| May 5, 2009 |
| Appellate Division, First Department |
| Johanna King Vespe, Appellant, v Ali A. Kazi et al.,Defendants, and Luis B. Padilla, Respondent. (And a Third-PartyAction.) |
—[*1] Russo, Keane & Toner LLP, New York (Brenda R. Hall of counsel), forrespondent.
Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered April 2, 2008, which,insofar as appealed from as limited by the briefs, granted defendant Padilla's motion forsummary judgment dismissing the complaint as against him, unanimously affirmed, withoutcosts.
Plaintiff was a passenger in the second vehicle in a four-vehicle accident, in which thatsecond vehicle rear-ended defendant Padilla's lead vehicle, which was stopped in the right laneof a bridge due to a mechanical failure.
"[A] rear-end collision with a stopped vehicle establishes a prima facie case of negligence onthe part of the operator of the second vehicle" (Johnson v Phillips, 261 AD2d 269, 271[1999]). Here, Padilla established his prima facie entitlement to judgment as a matter of law, bysubmitting evidence that he was stopped in the right lane on the bridge, with no other place togo, due to the mechanical failure of his vehicle (see Mankiewicz v Excellent, 25 AD3d 591 [2006]; Macauley v ELRAC, Inc., 6 AD3d584 [2004]).
In opposition, plaintiff failed to raise a triable issue of fact; she and codefendant Kazi (driverof vehicle two) both testified that prior to the accident they observed Padilla's vehicle stopped onthe bridge in the right lane approximately 50 feet ahead of them. While plaintiff claims that thereis an issue of fact as to whether Padilla had his hazard lights on, such fact is irrelevant in light ofthe testimony of Kazi and plaintiff that they saw Padilla's vehicle stopped before the accident.Thus, any failure to use hazard lights was not the proximate cause of the accident (see Barilev Lazzarini, 222 AD2d 635 [1995]).[*2]
We have considered plaintiff's remaining contentions andfind them unavailing. Concur—Gonzalez, P.J., Buckley, Catterson, McGuire andRenwick, JJ.