| DeLouise v S.K.I. Wholesale Beer Corp. |
| 2010 NY Slip Op 05984 [75 AD3d 489] |
| July 6, 2010 |
| Appellate Division, Second Department |
| Michael A. DeLouise, Respondent, v S.K.I. WholesaleBeer Corp. et al., Appellants. (And a Third-Party Action.) |
—[*1] Everett J. Petersson, P.C., Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants S.K.I. Wholesale BeerCorp and Jose Luis Lopez appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Kramer, J.), dated October 16, 2009, as granted those branchesof the plaintiff's motion which were for summary judgment on the issue of liability and for leaveto amend the complaint to assert additional causes of action to recover damages for negligententrustment, negligent hiring, and negligent retention.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the plaintiff's motion which were for summary judgment on the issue of liability andfor leave to amend the complaint to assert additional causes of action to recover damages fornegligent entrustment, negligent hiring, and negligent retention are denied.
This action arises out of a motor vehicle accident that occurred in a Manhattan parkinggarage on December 13, 2007, when a truck operated by the defendant Jose Luis Lopez struckthe rear of the plaintiff's vehicle. As a general rule, a rear-end collision with a stopped orstopping vehicle creates a prima facie case of negligence with respect to the operator of therearmost vehicle, imposing a duty of explanation on that operator to excuse the collision eitherthrough a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on awet pavement, or any other reasonable cause (see Klopchin v Masri, 45 AD3d 737, 737 [2007]; Leal vWolff, 224 AD2d 392, 393 [1996]).
In opposition to the plaintiff's prima facie showing of his entitlement to judgment as a matterof law on the issue of liability, Lopez submitted an affidavit in which he stated that it wassnowing when he entered the parking garage, that the entrance of the parking garage had a rampthat curved to the right and sloped downward, and that, although he was driving "slowly andwith caution," the "slick, wet surface condition of the garage floor" caused his vehicle to react as"if it was covered with black ice on the surface that was not visible to me." He further stated thathe "was surprised by the existence of the slippery conditions that were not visible to one drivingdown the [*2]ramp" because the ramp was not otherwise exposedto the elements. He also noted that he observed no sand or ice melt spread over the surface of theramp.
In addition, the defendants also submitted meteorological records which showed that it wassnowing, and that the temperatures were falling from above freezing to below freezing on thedate of the accident. Under the circumstances, the defendant's explanation was sufficient todefeat the plaintiff's motion for summary judgment on the issue of liability (see Briceno v Milbry, 16 AD3d448 [2005]; Simpson v Eastman, 300 AD2d 647 [2002]; Artis v JamaicaBuses, 262 AD2d 511 [1999]).
The plaintiff also sought leave to amend the complaint to assert the additional causes ofaction of negligent entrustment, negligent hiring, and negligent retention. Although CPLR 3025(b) provides that leave to serve an amended pleading should be freely given (see AYWNetworks v Teleport Communications Group, 309 AD2d 724 [2003]; Charleson v Cityof Long Beach, 297 AD2d 777 [2002]; Holchendler v We Transp., 292 AD2d 568[2002]), leave to amend should be denied where the proposed amendment is palpablyinsufficient as a matter of law or is totally devoid of merit (see Morton v Brookhaven Mem. Hosp., 32 AD3d 381 [2006]; Thone v Crown Equip. Corp., 27AD3d 723 [2006]). Here, the Supreme Court improvidently exercised its discretion ingranting the plaintiff leave to amend his complaint since the plaintiff's motion papers werecompletely devoid of any factual basis for the proposed amendments. Dillon, J.P., Santucci,Balkin, Belen and Sgroi, JJ., concur.