| Mandel v Benn |
| 2009 NY Slip Op 08188 [67 AD3d 746] |
| November 10, 2009 |
| Appellate Division, Second Department |
| Allen Mandel, Appellant, v George E. Benn et al.,Respondents, et al., Defendants. (And a Third-Party Action.) |
—[*1] Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), forrespondents George E. Benn and MSBA/MTA Long Island Bus. Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola of counsel), forrespondent John N. Villani. Perry T. Criscitelli, Floral Park, N.Y., for defendants John M. Power and Con-KelLandscaping.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered May19, 2008, as granted that branch of the motion of the defendants George E. Benn andMSBA/MTA Long Island Bus which was for summary judgment dismissing the complaintinsofar as asserted against them, and granted the separate motion of the defendant John N.Villani for summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.
On April 11, 2005 the plaintiff was a passenger on a bus driven by the defendant GeorgeBenn and owned by the defendant MSBA/MTA Long Island Bus (hereinafter together [*2]MTA/Benn), which was traveling westbound on Stewart Avenue,near its intersection with Merrick Avenue. A vehicle driven by the defendant John N. Villani,which was stopped on the eastbound side of Stewart Avenue, was struck in the rear by a dumptruck driven by the defendant John Power and owned by the defendant Con-Kel Landscaping,and was suddenly propelled into the path of the oncoming bus. Benn swerved the bus to avoidcolliding with Villani's vehicle and, as a result, the bus struck a pole, allegedly causing injuriesto the plaintiff. After the plaintiff commenced this action, MTA/Benn and Villani separatelymoved, inter alia, for summary judgment dismissing the complaint insofar as asserted againstthem, and the Supreme Court granted that relief. We affirm.
"A driver is not obligated to anticipate that a vehicle traveling in the opposite direction willcross over into the oncoming lane of traffic. Such an event constitutes a classic emergencysituation, implicating the emergency doctrine" (Koenig v Lee, 53 AD3d 567, 567 [2008], quoting Marsch v Catanzaro, 40 AD3d941, 942 [2007]; see Gajjar vShah, 31 AD3d 377, 377-378 [2006]). Here, MTA/Benn made a prima facie showingthat Benn's reaction in the emergency situation, swerving out of the path of the oncomingvehicle, was reasonable as a matter of law under the circumstances, which were not of his ownmaking (see Marsch v Catanzaro, 40 AD3d at 942; Gajjar v Shah, 31 AD3d at378; Williams v Econ, 221 AD2d 429, 430 [1995]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v ProspectHosp., 68 NY2d 320, 326-327 [1986]). The conclusory and speculative assertions profferedby the plaintiff's expert are insufficient to defeat MTA/Benn's motion for summary judgment(see generally Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002];Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]; Huggins vFigueroa, 305 AD2d 460, 462 [2003]). Accordingly, the Supreme Court properly grantedthat branch of MTA/Benn's motion which was for summary judgment dismissing the complaintinsofar as asserted against them.
Further, " '[a] rear-end collision with a stopped or stopping vehicle creates a prima facie caseof negligence against the operator of the rear vehicle, thereby requiring that operator to rebut theinference of negligence by providing a nonnegligent explanation for the collision' " (Harrington v Kern, 52 AD3d 473,473 [2008], quoting Klopchin vMasri, 45 AD3d 737, 737 [2007]; see Allstate Ins. Co. v Liberty Lines Tr., Inc., 50 AD3d 712, 713[2008]; Kimyagarov v Nixon TaxiCorp., 45 AD3d 736 [2007]), or by providing "a nonnegligent reason for his failure tomaintain a safe distance between his car and the lead car" (Woodley v Ramirez, 25 AD3d 451, 452 [2006]; see Mullen v Rigor, 8 AD3d 104[2004]). The failure to do so entitles the parties in the stopped vehicle to summary judgmentagainst the operator of the vehicle that rear-ended them (see Allstate Ins. Co. v Liberty LinesTr., Inc., 50 AD3d at 712; Moralesv Morales, 55 AD3d 306, 307 [2008]).
Here, Villani made a prima facie showing of entitlement to judgment as a matter of law bytendering his own deposition testimony stating that his vehicle was stopped in the left eastboundlane of Stewart Avenue when it was struck in the rear by a vehicle operated by Power (seeBarile v Lazzarini, 222 AD2d 635, 636 [1995]). In opposition, the plaintiff failed to "rebutthe inference of negligence by providing a nonnegligent explanation for the collision"(Harrington v Kern, 52 AD3d at 473; see Woodley v Ramirez, 25 AD3d at 452;Mullen v Rigor, 8 AD3d at 104; Barile v Lazzarini, 222 AD2d at 636-637).Accordingly, the Supreme Court properly granted Villani's motion for summary judgmentdismissing the complaint insofar as asserted against him. Rivera, J.P., Florio, Miller and Austin,JJ., concur.