| Camarillo v Sandoval |
| 2011 NY Slip Op 08895 [90 AD3d 593] |
| December 6, 2011 |
| Appellate Division, Second Department |
| Evelyn Camarillo, Respondent, v Jose Sandoval et al.,Defendants, Jose L. Navarro, Appellant, and Giovanni Rodriguez et al.,Respondents. |
—[*1]
Rimland & Associates, New York, N.Y. (Victor Goldblum and Matthew A. Kaufman ofcounsel), for plaintiff-respondent. Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, the defendant Jose L. Navarro appealsfrom an order of the Supreme Court, Kings County (Bayne, J.), dated April 15, 2011, whichdenied his motion for summary judgment dismissing the complaint and all cross claims insofar asasserted against him.
Ordered that the order is affirmed, with one bill of costs, payable to the respondentsappearing separately and filing separate briefs.
The plaintiff allegedly was injured when a car driven by the defendant Giovanni Rodriguez,in which she was a passenger, struck the rear of a car driven by the defendant Jose L. Navarro.Navarro moved for summary judgment dismissing the complaint and all cross claims insofar asasserted against him. The Supreme Court denied the motion, and we affirm.
"A rear-end collision with a stopped or stopping 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 come forward with an adequate, non-negligent explanation for theaccident" (Oguzturk v General Elec.Co., 65 AD3d 1110, 1110 [2009] [internal quotation marks omitted]; see Carman v Arthur J. Edwards MasonContr. Co., Inc., 71 AD3d 813 [2010]; Foti v Fleetwood Ride, Inc., 57 AD3d 724, 724 [2008]; Hughes v Cai, 55 AD3d 675[2008]). Here, although Navarro testified at his deposition that he was traveling in the same lanefor 19 or 20 blocks before he stopped completely at a red light and was rear-ended byRodriguez's vehicle, the plaintiff's deposition testimony, submitted by Navarro in support of hismotion, was that Navarro was traveling in an adjacent lane and swerved in front of Rodriguez'svehicle before quickly coming to a stop. In light of the plaintiff's testimony, the defendant failedto eliminate all triable issues of fact (seeScheker v Brown, 85 AD3d 1007 [2011]; Reitz [*2]v Seagate Trucking, Inc., 71AD3d 975 [2010]; Oguzturk v General Elec. Co., 65 AD3d at 1110-1111; Guerra v Cantos, 38 AD3d 714[2007]; Briceno v Milbry, 16 AD3d448 [2005]; Mohan v Puthumana, 302 AD2d 437 [2003]; Rozengauz v LokWing Ha, 280 AD2d 534 [2001]). Contrary to Navarro's contention, the plaintiff's testimonywas not incredible as a matter of law, and any inconsistencies in her testimony raise an issue ofcredibility that must be resolved by the factfinder (see Frazier v Hertz Vehs., LLC, 78 AD3d 767, 768 [2010]; seegenerally Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]).
Accordingly, the Supreme Court properly denied Navarro's motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against him. Skelos, J.P., Hall,Lott and Cohen, JJ., concur.