| Franco v Breceus |
| 2010 NY Slip Op 00923 [70 AD3d 767] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Pilar Franco et al., Respondents, v Joseph P. Breceus et al.,Appellants, and Adam B. Dauguste, Respondent. |
—[*1] Morris Duffy Alonso & Faley, LLP, New York, N.Y. (Anna J. Ervolina and Andrea M.Alonso of counsel), for plaintiff-respondent Ramon Franco. James G. Bilello, Westbury, N.Y. (Marjorie Jules of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants Joseph P. Breceusand Vicaire Artis appeal, as limited by their brief, from so much of an order of the SupremeCourt, Kings County (Schack, J.), dated December 12, 2008, as, upon reargument, adhered to anoriginal determination in an order dated May 16, 2008, granting the motion of the defendantAdam B. Dauguste for summary judgment dismissing the complaint and all cross claims insofaras asserted against him, granting the plaintiffs' cross motion for summary judgment on the issueof liability against them, and granting that branch of the separate cross motion of the plaintiffRamon Franco which was for summary judgment dismissing their counterclaim for contributionand/or indemnification against him for any damages resulting from injuries sustained by theplaintiff Pilar Franco.
Ordered that the order dated December 12, 2008, is affirmed insofar as appealed from, withone bill of costs.
On April 20, 2007, at about 8:00 a.m., the parties were involved in a three-vehicle collisionin the westbound lane of the Grand Central Parkway in Queens. The defendant Adam B.Dauguste was operating the lead vehicle, while the plaintiff Pilar Franco was a passenger in herown vehicle operated by her husband, the plaintiff Ramon Franco, which was in the middle. Avehicle operated by the defendant Joseph P. Breceus and owned by the defendant Vicaire Artiswas in the rear. The plaintiffs commenced this action against all the defendants, and thedefendants asserted cross claims against each other, and counterclaims against the plaintiffs.
After discovery, Dauguste moved for summary judgment, contending that his vehicle was hitin the rear by the plaintiffs' vehicle, and the plaintiffs cross-moved for summary judgment [*2]on the issue of liability against Breceus and Artis, contending thattheir vehicle was propelled into Dauguste's vehicle when the Breceus vehicle hit their vehicle inthe rear. The plaintiff Ramon Franco separately cross-moved to dismiss the counterclaims.Breceus and Artis opposed the cross motions, contending that Dauguste made a sudden stop inheavy traffic and that the plaintiffs' vehicle struck the Dauguste vehicle before the Breceusvehicle struck the plaintiffs' vehicle.
The Supreme Court granted the motion and the cross motions. Breceus and Artis appealed tothis Court, and simultaneously moved for leave to reargue before the trial court. In a supersedingorder, the trial court granted the motion by Breceus and Artis for leave to reargue and, uponreargument, adhered to its original determination. In the interim, the earlier appeal was dismissedby decision and order on motion of this Court dated March 17, 2009, for failure to perfect inaccordance with the rules of this Court (see 22 NYCRR 670.8 [h]). This appeal ensuedfrom the superseding order made upon reargument. We affirm.
As general rule, this Court does not consider an issue on a subsequent appeal which wasraised or could have been raised in an earlier appeal which was dismissed for lack ofprosecution, although the Court has the inherent jurisdiction to do so (see Rubeo v NationalGrange Mut. Ins. Co., 93 NY2d 750, 754 [1999]; Bray v Cox, 38 NY2d 350, 353[1976]).
While the better practice would have been for Breceus and Artis to withdraw the priorappeal, rather than abandon it, nonetheless, we exercise our discretion to review the issues raisedon the appeal from so much of the order dated December 12, 2008, as was made uponreargument (see Neuburger vSidoruk, 60 AD3d 650, 652 [2009]; DiGiaro v Agrawal, 41 AD3d 764, 765 [2007]; Cesar v Highland Care Ctr., Inc., 37AD3d 393, 393-394 [2007]).
With respect to the merits of the appeal, " '[a] rear-end collision with a stopped or stoppingvehicle creates a prima facie case of negligence against the operator of the rear vehicle, therebyrequiring that operator to rebut the inference of negligence by providing a nonnegligentexplanation for the collision' " (Harrington v Kern, 52 AD3d 473, 473 [2008], quoting Klopchin v Masri, 45 AD3d 737,737 [2007]; see Eybers vSilverman, 37 AD3d 403, 404 [2007]). "A claim that the driver of the lead vehicle madea sudden stop, standing alone, is insufficient to rebut the presumption of negligence" (Campbell v City of Yonkers, 37 AD3d750, 751 [2007], quoting Ayach vGhazal, 25 AD3d 742, 743 [2006]; see Arias v Rosario, 52 AD3d 551, 552 [2008]; Smith v Seskin, 49 AD3d 628,629 [2008]).
Here, the Supreme Court properly granted the plaintiffs' cross motion for summary judgmenton the issue of liability against Breceus and Artis, and the separate cross motion to dismiss thecounterclaim for contribution and/or indemnification insofar as asserted by Breceus and Artis.The plaintiffs established their prima facie entitlement to judgment as a matter of law bydemonstrating that their vehicle was stopped when it was hit by the vehicle operated by Breceusand owned by Artis (see Eybers v Silverman, 37 AD3d at 404; Russ v Investech Sec., 6 AD3d602 [2004]; Dileo v Greenstein, 281 AD2d 586 [2001]). As a result of that impact,the plaintiffs' vehicle was propelled forward and struck the vehicle operated by Dauguste, whosemotion for summary judgment dismissing the complaint against him for lack of negligence wasalso properly granted (see Malak vWynder, 56 AD3d 622, 623 [2008] ["Evidence that a vehicle was rear-ended andpropelled into the stopped vehicle in front of it may provide a sufficient nonnegligentexplanation"]; Katz v Masada II Car &Limo Serv., Inc., 43 AD3d 876, 877 [2007] [same]).
In opposition to the plaintiffs' cross motions, neither Breceus nor Artis submitted anyevidence sufficient to raise a triable issue of fact (see Arias v Rosario, 52 AD3d at 552;Smith v Seskin, 49 AD3d at 629; Campbell v City of Yonkers, 37 AD3d at 751).Accordingly, the Supreme Court properly granted the motion and cross motions for summaryjudgment.
The remaining contentions of Breceus and Artis either are not properly before this Court orare without merit. Santucci, J.P., Balkin, Eng and Chambers, JJ., concur.