| Staton v Ilic |
| 2010 NY Slip Op 00131 [69 AD3d 606] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Dione Staton et al., Appellants, v Dragos Lav Ilic et al.,Respondents. Alberto Zorrilla, Counterclaim Defendant-Appellant. |
—[*1] Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), for counterclaimdefendant-appellant. Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht ofcounsel), for defendants-respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Queens County (Sampson, J.), enteredOctober 16, 2008, as denied their motion for summary judgment on the issue of liability, and thecounterclaim defendant appeals from so much of the same order as denied his cross motion forsummary judgment dismissing the counterclaim.
Ordered that the order is reversed, on the law, with one bill of costs payable to the appellantsappearing separately and filing separate briefs, and the plaintiffs' motion for summary judgmenton the issue of liability and the counterclaim defendant's cross motion for summary judgmentdismissing the counterclaim are granted.
A rear-end collision with a stopped vehicle creates a prima facie case of negligence againstthe operator of the offending vehicle, thereby requiring that operator to rebut the inference ofnegligence by providing a nonnegligent explanation for the collision (see Ramirez v Konstanzer, 61 AD3d837 [2009]; Arias v Rosario,52 AD3d 551 [2008]). If the operator of the moving vehicle cannot come forward withevidence to rebut the inference of negligence, the occupants and owner of the stationary vehicleare entitled to summary judgment on the issue of liability (see Lundy v Llatin, 51 AD3d 877 [2008]; Kimyagarov v Nixon Taxi Corp., 45AD3d 736 [2007]).
The plaintiffs established their entitlement to judgment as a matter of law by submittingaffidavits wherein they averred that the vehicle operated by Alberto Zorrilla, theplaintiff/counterclaim defendant, in which the plaintiff Dione Staton was a passenger, wasstopped when it was struck in the rear [*2]by the vehicle operatedby the defendant Dragos Lav Ilic and owned by the defendant Snezana Ilic (see Garner v Chevalier Transp. Corp.,58 AD3d 802 [2009]; Jumandeo v Franks, 56 AD3d 614 [2008]; Neidereger v Misuraca, 27 AD3d537 [2006]; Rainford v Sung S.Han, 18 AD3d 638 [2005]; Russ v Investech Sec., 6 AD3d 602 [2004]). In opposition, thedefendants failed to provide a nonnegligent explanation for the collision. The defendant driver'smere assertion that the Zorrilla vehicle came to a sudden stop while traveling in heavy trafficwas insufficient to raise a triable issue of fact (see Jumandeo v Franks, 56 AD3d 614 [2008]; Neidereger v Misuraca, 27 AD3d537 [2006]; Rainford v Sung S.Han, 18 AD3d 638 [2005]; Russ v Investech Sec., 6 AD3d 602 [2004]). Similarly, in responseto Zorrilla's demonstration of his entitlement to judgment as a matter of law dismissing thecounterclaim, the defendants failed to raise a triable issue of fact. Contrary to the defendants'contention, the motions were not premature (see CPLR 3212 [f]; Kimyagarov v Nixon Taxi Corp., 45AD3d 736 [2007]). Accordingly, the Supreme Court should have granted the motion and thecross motion. Prudenti, P.J., Covello, Lott and Sgroi, JJ., concur.