| Giangrasso v Callahan |
| 2011 NY Slip Op 06117 [87 AD3d 521] |
| August 2, 2011 |
| Appellate Division, Second Department |
| Paul Giangrasso, Respondent, v Martin Callahan et al.,Appellants. |
—[*1] Kelner & Kelner, New York, N.Y. (Joshua D. Kelner, Ronald C. Burke, and Gail S. Kelnerof counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Cohalan, J.), dated January 13, 2010, which granted theplaintiff's motion for summary judgment on the issue of liability and denied their cross motionfor summary judgment dismissing the complaint on the ground that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d).
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the plaintiff's motion for summary judgment on theissue of liability. A driver of a vehicle approaching another vehicle from the rear is required tomaintain a reasonably safe distance and rate of speed under the prevailing conditions to avoidcolliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Ortiz v Hub Truck Rental Corp., 82AD3d 725, 726 [2011]; Nsiah-Ababio v Hunter, 78 AD3d 672 [2010]). 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];Ortiz v Hub Truck Rental Corp., 82 AD3d at 726; Parra v Hughes, 79 AD3d 1113, 1114 [2010]; DeLouise v S.K.I. Wholesale BeerCorp., 75 AD3d 489, 490 [2010]). In support of his motion, the plaintiff principallyrelied upon his own deposition testimony and the deposition testimony of the defendant driver,Martin Callahan. The plaintiff testified that as his vehicle was stopped at a stop sign at the end ofa Northern State Parkway exit ramp, awaiting clearance to merge into the right lane of Route 110south, his vehicle was struck in the rear by the defendants' vehicle. At his deposition, Callahantestified that as his vehicle entered the exit ramp, he saw the plaintiff's vehicle stopped at the endof the ramp, and he brought his vehicle to a stop behind it. Upon seeing the plaintiff's vehiclemove forward, Callahan took his eyes off the plaintiff's vehicle, looked to his left, andaccelerated forward before looking forward, striking the plaintiff's vehicle. Contrary to thedefendants' contention, under the circumstances of this case, Callahan's own depositiontestimony established that his inattentiveness in not looking in the direction he was driving wasthe sole proximate cause of the accident (see Sheeler v Blade Contr., [*2]262 AD2d 632, 633 [1999]). Accordingly, the plaintiff made aprima facie showing of his entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). In opposition, the defendants failed to raise a triable issueof fact.
The Supreme Court also properly denied the defendants' cross motion for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injury withinthe meaning of Insurance Law § 5102 (d). The defendants contended that the plaintiff'sinjuries were from a prior accident. The defendants' examining physicians failed to compare theresults of their findings as to the plaintiff's range of motion in his spine after the subject accidentwith his condition before the accident. Absent such a comparative quantification of theirfindings, it cannot be concluded that the preexisting limitation in the range of motion in theplaintiff's spine was not exacerbated by the accident (see McKenzie v Redl, 47 AD3d 775, 777 [2008]; McLaughlin v Rizzo, 38 AD3d856, 858 [2007]; Spektor vDichy, 34 AD3d 557, 558 [2006]). Since the defendants failed to make a prima facieshowing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law§ 5102 (d) as a result of the subject accident, it is unnecessary to consider whether theplaintiff's papers in opposition were sufficient to raise a triable issue of fact (see Levin v Khan, 73 AD3d 991,992 [2010]; McKenzie v Redl, 47 AD3d at 775; Coscia v 938 Trading Corp., 283AD2d 538 [2001]). Skelos, J.P., Balkin, Leventhal and Lott, JJ., concur. [Prior Case History:2010 NY Slip Op 30218(U).]