| Johnson v Yarussi Constr., Inc. |
| 2010 NY Slip Op 05073 [74 AD3d 1772] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Shannon L. Johnson, Appellant, v Yarussi Construction, Inc., et al.,Respondents, et al., Defendants. |
—[*1] Wilser, Elser, Moskowitz, Edelman & Dicker, LLP, Albany (Benjamin F. Neidl of counsel),for defendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered April8, 2009 in a personal injury action. The order granted the motion of defendants YarussiConstruction, Inc. and Carmen Bongiovanni for summary judgment and dismissed the complaintagainst them.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Supreme Court, Erie County, for further proceedingsin accordance with the following memorandum: Plaintiff commenced this action to recoverdamages for injuries that she allegedly sustained when the motor vehicle she was drivingcollided with the rear end of a tractor-trailer owned by defendant Yarussi Construction, Inc. andoperated by defendant Carmen Bongiovanni (collectively, defendants). Defendants moved forsummary judgment dismissing the complaint against them on the grounds that they were notnegligent and that plaintiff did not sustain a serious injury in the accident. We agree withplaintiff that Supreme Court erred in granting the motion of defendants on the ground that theywere not negligent.
"It is well established that a rear-end collision with a stopped vehicle establishes a primafacie case of negligence on the part of the driver of the rear vehicle . . . Thepresumption of negligence imposes a duty [on that driver to] . . . submit anon-negligent explanation for the collision" (Pitchure v Kandefer Plumbing & Heating,273 AD2d 790, 790 [2000]; seeHerdendorf v Polino, 43 AD3d 1429 [2007]). Conversely, "[a] nonnegligent explanationfor the collision, such as mechanical failure or the sudden and abrupt stop of the vehicle ahead, issufficient to overcome the inference of negligence and preclude an award of summary judgment"(Rodriguez-Johnson v Hunt, 279 AD2d 781, 782 [2001]; see Herdendorf, 43AD3d at 1429-1430).
In support of their motion, defendants submitted the deposition testimony of Bongiovanni,who testified that the tractor-trailer was struck from behind while waiting for two cars to moveso that he could negotiate a sharp right-hand turn into an access road. In addition, however,defendants submitted the deposition testimony of plaintiff, in which she testified that [*2]the tractor-trailer was stopped in the left of the two northboundlanes of travel, began to turn right from that lane, and then abruptly stopped again for noapparent reason. "Viewing the evidence in the light most favorable to the nonmoving part[y], aswe must . . . , and given the divergent views of the manner in which the accidentoccurred, we conclude that there is an issue of fact" whether Bongiovanni's negligence was aproximate cause of the collision, which therefore precludes an award of summary judgment todefendants (Graziadei v Mohamed,23 AD3d 1100, 1101 [2005] [citations omitted]; see Ramadan v Maritato, 50 AD3d 1620 [2008]; Heal vLiszewski, 294 AD2d 911 [2002]).
Finally, we reject the contention of defendants on appeal that the court erred in implicitlydenying their motion with respect to the issue of serious injury. In view of its decision withrespect to the negligence ground as the basis for the motion, the court determined that theremaining ground for defendants' motion was moot and thus did not reach it. Because thatground, i.e., whether plaintiff sustained a serious injury, is no longer moot, we remit the matterto Supreme Court to determine that issue and thus to decide defendants' motion (see Murray v Lancaster Motorsports,Inc., 27 AD3d 1193, 1196 [2006]). Present—Martoche, J.P., Smith, Fahey,Peradotto and Green, JJ.