| Napolitano v Galletta |
| 2011 NY Slip Op 05243 [85 AD3d 881] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Gina Napolitano, Respondent, v Julia Galletta,Defendant/Third-Party Plaintiff-Appellant, and Angelina Napolitano et al.,Defendants/Third-Party Defendants-Respondents. |
—[*1] Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola and John A. Asta ofcounsel), for defendants/third-party defendants-respondents.
In an action to recover damages for personal injuries, the defendant/third-party plaintiffappeals from an order of the Supreme Court, Suffolk County (Farneti, J.), dated October 8, 2010,which granted the motion of the defendants/third-party defendants for summary judgment, ineffect, dismissing the complaint and the third-party complaint insofar as asserted against them.
Ordered that the appeal from so much of the order as granted that branch of the motion of thedefendant/third-party defendants which was for summary judgment dismissing the complaintinsofar as asserted against them is dismissed, as the defendant/third-party plaintiff is notaggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144[2010]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, and that branch of themotion of the defendants/third-party defendants which was for summary judgment dismissing thethird-party complaint is denied; and it is further,
Ordered that one bill of costs is awarded to the defendant third-party plaintiff.
The instant action arises out of a four-vehicle, chain-reaction accident that occurred on theWilliam Floyd Parkway in Shirley on September 1, 2007. On that date, the plaintiff, GinaNapolitano, was a passenger in a vehicle owned by the defendant John Napolitano and operatedby the defendant Angelina Napolitano (hereinafter the Napolitano defendants), when that vehiclewas struck from behind by another vehicle owned and operated by the defendant/third-partyplaintiff, Julia Galletta (hereinafter the appellant).
"A driver of a vehicle approaching another vehicle from the rear is required to maintain areasonably safe distance and rate of speed under the prevailing conditions to avoid [*2]colliding with the other vehicle" (Nsiah-Ababio v Hunter, 78 AD3d672, 672 [2010]; see Vehicle and Traffic Law § 1129 [a]). Accordingly, arear-end collision establishes a prima facie case of negligence on the part of the operator of therear vehicle, thereby requiring that operator to rebut the inference of negligence by providing anonnegligent explanation for the collision (see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; Klopchin v Masri, 45 AD3d 737[2007]; Starace v Inner Circle Qonexions, 198 AD2d 493 [1993]; Edney vMetropolitan Suburban Bus Auth., 178 AD2d 398, 399 [1991]). A nonnegligent explanationmay include evidence of a mechanical failure, a sudden stop of the vehicle ahead, an unavoidableskidding on wet pavement, or any other reasonable cause (see DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490[2010]).
Here, the Napolitano defendants demonstrated their prima facie entitlement to judgment as amatter of law dismissing the third-party complaint by submitting evidence that their vehicle (theplaintiff's host-vehicle) was either stopped or in the process of stopping when it was struck frombehind by the appellant's vehicle. In opposition, the appellant submitted, inter alia, her affidavitin which she stated that, prior to the impact of her vehicle with the rear of the plaintiff'shost-vehicle, the plaintiff's host-vehicle stopped short and collided with the rear of a truckdirectly in front of it. Contrary to the Supreme Court's determination, the appellant came forwardwith a nonnegligent explanation for the rear-end collision into the plaintiff's host-vehicle. Since atriable issue of fact exists as to whether the Napolitano defendants caused or contributed to thesubject accident, the Supreme Court erred in granting that branch of their motion which was forsummary judgment dismissing the third-party complaint. Dillon, J.P., Leventhal, Hall and Lott,JJ., concur.