| Shirman v Lawal |
| 2010 NY Slip Op 00502 [69 AD3d 838] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Elina Shirman, Appellant, v Gbemisola R. Lawal et al.,Defendants, and John Pabone et al., Respondents. |
—[*1] Mead, Hecht, Conklin & Gallagher, LLP, Mamaroneck, N.Y. (Elizabeth M. Hecht ofcounsel), for respondent John Pabone. Kay & Gray, Westbury, N.Y. (Theresa P. Mariano of counsel), for respondent OlegPilyugin.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), datedAugust 27, 2008, as granted the motion of the defendant Oleg Pilyugin for summary judgmentdismissing the complaint insofar as asserted against him on the ground that she did not sustain aserious injury within the meaning of Insurance Law § 5102 (d), and granted that branch ofthe separate motion of the defendant John Pabone which was for summary judgment dismissingthe complaint insofar as asserted against him on the ground that he was not at fault in thehappening of the accident.
Ordered that the order is modified, on the law, by deleting the provision thereof granting themotion of the defendant Oleg Pilyugin for summary judgment dismissing the complaint insofaras asserted against him, and substituting therefor a provision denying that motion; as somodified, the order is affirmed insofar as appealed from, with one bill of costs to the respondentJohn Pabone payable by the plaintiff, and one bill of costs to the plaintiff payable by therespondent Oleg Pilyugin.
This action arises from a three-car, chain-collision accident which occurred on the StatenIsland Expressway. It is undisputed that a motor vehicle operated by the defendant John Pabonewas struck in the rear by a motor vehicle operated by the defendant Oleg Pilyugin and owned bythe plaintiff Elina Shirman, who was a passenger. After joinder of issue, Pilyugin moved forsummary judgment dismissing the complaint insofar as asserted against him on the ground thatthe plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and Pabone separately moved, inter alia, for summary judgment dismissing the complaintinsofar as asserted against him on the ground that he was not at fault in the happening of theaccident. Contrary to the determination of the Supreme Court, Pilyugin failed to meet his burdenof showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) (see Toure v Avis Rent A Car Sys. 98 NY2d 345 [2002]; Gaddy vEyler, 79 NY2d [*2]955, 956-957 [1992]; Walker v Public Adm'r of SuffolkCounty, 60 AD3d 757 [2009]). With regard to range-of-motion testing performed on theplaintiff's lumbar spine, the movant's expert neurologist, Dr. Michael J. Carciente, indicated onlythat the straight leg maneuver was negative to "about 90 degrees in the sitting position," andfailed to compare his finding to what is normal (see Walker v Public Adm'r of SuffolkCounty, 60 AD3d at 757; Malave vBasikov, 45 AD3d 539 [2007]). Under these circumstances, it is not necessary toconsider the sufficiency of the plaintiff's opposition to Pilyugin's motion (see Page v Belmonte, 45 AD3d825 [2007]; Tchjevskaia vChase, 15 AD3d 389 [2005]), and the Supreme Court should have denied Pilyugin'smotion.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the [moving] vehicle," and imposes a duty on theoperator of the moving vehicle to come forward with an adequate nonnegligent explanation forthe accident (Smith v Seskin, 49AD3d 628, 629 [2008]). Here, Pabone made a prima facie showing of his entitlement tojudgment as a matter of law by submitting evidence that his vehicle was struck in the rear by thevehicle operated by Pilyugin (see Ariasv Rosario, 52 AD3d 551, 552 [2008]). Under these circumstances, the assertion that thePabone vehicle suddenly stopped was insufficient to rebut the presumption of negligence createdby the rear-end collision. Thus, the plaintiff failed to raise a triable issue of fact in opposition toPabone's motion (see Arias v Rosario, 52 AD3d at 552-553), and the Supreme Courtproperly granted that branch of Pabone's motion which was for summary judgment dismissingthe complaint insofar as asserted against him. Covello, J.P., Angiolillo, Balkin and Sgroi, JJ.,concur.