| Davidoff v Mullokandov |
| 2010 NY Slip Op 04944 [74 AD3d 862] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Dora Davidoff et al., Appellants, v Avner Mullokandov etal., Appellants, and Rafael Shimunov et al., Respondents. |
—[*1] Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Gaetana Liantonio-McBride ofcounsel), for defendants-appellants. Picciano & Scahill, P.C., Westbury, N.Y. (Gilbert J. Hardy and Francis J. Scahill ofcounsel), for respondent Rafael Shimunov. White, Fleischner & Fino, LLP, New York, N.Y. (Jason Steinberg of counsel), forrespondent Richard Pruzan.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, and thedefendants Avner Mullokandov and Eduard Mullokandov separately appeal, from an order of theSupreme Court, Queens County (Weiss, J.), dated November 7, 2008, which granted the motionof the defendant Rafael Shimunov for summary judgment dismissing the complaint insofar asasserted against him and granted the cross motion of the defendant Richard Pruzan for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against him.
Ordered that the appeal by the plaintiffs from so much of the order as granted that branch ofthe cross motion which was to dismiss all cross claims asserted against the defendant RichardPruzan is dismissed, as the plaintiffs are not aggrieved by that portion of the order (seeCPLR 5511); and it is further,
Ordered that the appeal by the defendants Avner Mullokandov and Eduard Mullokandovfrom so much of the order as granted the motion of the defendant Rafael Shimunov for summaryjudgment dismissing the complaint insofar as asserted against him and granted the cross motionof the defendant Richard Pruzan for summary judgment dismissing the complaint insofar asasserted against him is dismissed, as they are not aggrieved by those portions of the order(see CPLR 5511); and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,[*2]
Ordered that one bill of costs is awarded to therespondents.
The defendant Richard Pruzan was operating his motor vehicle in the left lane of the expressroadway of Queens Boulevard, in Queens, when a motor vehicle owned by the defendant EduardMullokandov, and operated by the defendant Avner Mullokandov, attempted to move from thecenter lane to the left lane. In so doing, the Mullokandov vehicle collided with the side of thePruzan vehicle, and subsequently struck the rear of a motor vehicle operated by the defendantRafael Shimunov. The decedent, Isak Lakhchakov, was a passenger in the Mullokandov vehicleat the time of the occurrence. The plaintiffs, Dora Davidoff, as administrator of the decedent'sestate, and the decedent's wife, commenced the instant action.
After joinder of issue, Shimunov moved for summary judgment dismissing the complaintinsofar as asserted against him, and Pruzan cross-moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against him.
"Generally, a rear-end collision with a stopped vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle and imposes a duty on the operatorof the moving vehicle to rebut the inference of negligence by providing a non-negligentexplanation for the collision" (Carhuayano v J&R Hacking, 28 AD3d 413, 414 [2006]). Here,Shimunov established his entitlement to judgment as a matter of law. The undisputed evidencethat the motor vehicle operated by Avner Mullokandov struck the motor vehicle operated byShimunov in the rear, while it was stopped, established a prima facie case of negligence againstthe defendant Avner Mullokandov.
In opposition, the plaintiffs failed to raise a triable issue of fact. The evidence submitted inopposition to the motion did not provide a nonnegligent explanation for the collision. At hisdeposition, Avner Mullokandov expressly testified that when he first saw the Shimunov vehicleahead of him, the vehicle was already stopped in the roadway. Therefore, the plaintiffs'arguments on appeal that the Shimunov vehicle had stopped suddenly are not supported by therecord (see Neidereger v Misuraca,27 AD3d 537, 538 [2006]).
Furthermore, Pruzan established his entitlement to judgment as a matter of law bydemonstrating that he was lawfully operating his motor vehicle in the left lane of the expressroadway of Queens Boulevard when the vehicle operated by Avner Mullokandov entered intohis lane of traffic and collided with his automobile (see Rivera v Corbett, 69 AD3d 916 [2010]). The evidence whichwas submitted by the plaintiffs and the Mullokandovs in opposition to the cross motion failed toraise a triable issue of fact (see CPLR 3212 [b]). Accordingly, the Supreme Courtproperly granted the motion and the cross motion. Dillon, J.P., Miller, Dickerson and Chambers,JJ., concur.