| Volpe v Limoncelli |
| 2010 NY Slip Op 04779 [74 AD3d 795] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Lucrezia Volpe, Respondent, v Robert Limoncelli et al.,Appellants. |
—[*1] Alan J. Stern, P.C., Garden City, N.Y. (Elyse J. Stern of counsel), for respondent.
In an action to recover damages for personal injury, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), datedAugust 3, 2009, as granted that branch of the plaintiff's motion which was for summaryjudgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence against the operator of the rear vehicle, thereby requiring that operator to rebut theinference of negligence by providing a nonnegligent explanation for the collision" (Klopchin v Masri, 45 AD3d 737,737 [2007]; see Johnston v Spoto,47 AD3d 888 [2008]; Hakakian vMcCabe, 38 AD3d 493 [2007]).
The plaintiff sustained her burden of establishing a prima facie case of negligence byproffering her testimony at a hearing held pursuant to General Municipal Law § 50-hwherein she stated, inter alia, that she was stopped at a red light waiting to make a right turnwhen her vehicle was struck in the rear by a garbage truck owned by the defendant Town ofOyster Bay and driven by its employee, the defendant Robert Limoncelli (hereinafter thedefendant driver). In opposition to the motion, the defendant driver submitted an affidavit inwhich he alleged, among other things, that the plaintiff had begun to make a permitted right turnon the red light but then abruptly stopped, and he was unable to stop on the "wet roadway." Evenaccording full credit to the defendants' version of the accident, it was insufficient to raise atriable issue of fact in light of the circumstances of the accident. "[V]ehicle stops which areforeseeable under the prevailing traffic conditions, even if sudden and frequent, must beanticipated by the driver who follows, since he or she is under a duty to maintain a safe distancebetween his or her car and the car ahead" (Shamah v Richmond County AmbulanceServ., 279 AD2d 564, 565 [2001]; see Vehicle and Traffic Law § 1129 [a];Levine v Taylor, 268 AD2d 566 [2000]; see also David v New York City Bd. of Educ., 19 AD3d 639[2005]; Malone v Morillo, 6 AD3d324 [2004]). Nor is the inference of negligence rebutted by the mere assertion that thedefendants' vehicle was unable to stop on the allegedly wet roadway (see Faul v Reilly, 29 AD3d 626[2006]; Pincus v Cohen, 198 AD2d 405 [1993]; Schmidt v Edelman, 263 AD2d502, 503 [1999]; Benyarko v Avis Rent A Car Sys., 162 AD2d 572, 573 [1990]; seealso Hart v Town of N. Castle, 305 AD2d 543 [2003]; Kosinski v Sayers, 294 AD2d407 [2002]).[*2]
Accordingly, the Supreme Court properly granted thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability.Rivera, J.P., Florio, Angiolillo and Austin, JJ., concur.