| Perez v Roberts |
| 2012 NY Slip Op 00195 [91 AD3d 620] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| Jose Perez, Plaintiff, v Craig W. Roberts et al.,Defendants/Third-Party Plaintiffs-Appellants, William Cyriaque et al., Respondents, and MartinE. Perez, Defendant/Third-Party Defendant-Respondent. |
—[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel),for defendants-respondents. Brand, Glick & Brand, P.C., Garden City, N.Y. (Peter M. Khrinenko of counsel), fordefendant/third-party defendant-respondent.
In an action to recover damages for personal injuries, the defendants/third-party plaintiffsappeal, as limited by their notice of appeal and brief, from so much of an order of the SupremeCourt, Kings County (Schmidt, J.), dated October 4, 2010, as granted the defendant/third-partydefendant's motion for summary judgment dismissing the third-party complaint, and granted theseparate motion of the defendants William Cyriaque and Vogue Cab Corp. for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the appeal from so much of the order as granted the motion of the defendantsWilliam Cyriaque and Vogue Cab Corp. for summary judgment dismissing the complaint insofaras asserted against them is dismissed, as the appellants are not aggrieved by that portion of theorder (see CPLR 5511; Mixon vTBV, Inc., 76 AD3d 144 [2010]; Ratner v Petruso, 274 AD2d 566 [2000]); andit is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The subject chain-reaction rear-end collision involving three vehicles occurred on January27, 2006, at the intersection of Second Avenue and East 60th Street in Manhattan. The defendantWilliam Cyriaque was operating the lead vehicle, a taxicab owned by the defendant Vogue CabCorp. The defendant/third-party defendant, Martin E. Perez (hereinafter Perez), was operating thesecond vehicle, in which the plaintiff was a passenger. The defendant/third-party plaintiff Craig[*2]W. Roberts was operating the rear vehicle, a truck owned bythe defendant/third-party plaintiff AA Truck Renting Corp., and leased by Roberts's employer,the defendant/third-party plaintiff Peerless Importers Corp. (hereinafter collectively theappellants).
According to the deposition testimony of Cyriaque, Perez, and the plaintiff, the lead vehiclewas stopped at a red traffic signal for 10 to 20 seconds. Thereafter, the second vehicle stoppedbehind the lead vehicle. Eight to 10 seconds later, Roberts's vehicle struck the second vehicle,propelling the second vehicle into the lead vehicle.
According to Roberts's deposition testimony, while the traffic signal was green, the leadvehicle stopped to pick up passengers, and the second vehicle struck the lead vehicle and came toa stop. Roberts's vehicle was one to two car lengths away, and traveling at 10 miles per hour.Roberts applied the brakes for 10 seconds, but was unable to prevent his vehicle from collidingwith the second vehicle. Roberts's vehicle struck the second vehicle 10 to 15 seconds after thesecond vehicle stopped. At the time of the impact between Roberts's vehicle and the secondvehicle, the traffic signal was red.
"A rear-end collision with a stopped vehicle creates a prima facie case of negligence againstthe operator of the moving vehicle, thereby requiring that operator to rebut the inference ofnegligence by providing a non-negligent explanation for the collision" (Hauser v Adamov, 74 AD3d 1024,1025 [2010]). Under the circumstances of this case, Perez established his prima facie entitlementto judgment as a matter of law by submitting evidence demonstrating that the second vehicle,which he was operating, was struck in the rear (id.; see Franco v Breceus, 70 AD3d 767, 768-769 [2010]). Inopposition, even according full credit to Roberts's version of the events, the appellants failed tosubmit evidence sufficient to rebut the presumption of negligence and raise a triable issue of fact.Roberts's testimony that he saw the second vehicle strike the lead vehicle, that he applied hisbrakes for 10 seconds, and that he was still unable to avoid striking the second vehicle 10 to 15seconds later, did not adequately rebut the inference of negligence (see Cortes v Whelan, 83 AD3d763, 764 [2011]; Blasso vParente, 79 AD3d 923, 925 [2010]; Volpe v Limoncelli, 74 AD3d 795, 795-796 [2010]; Harrington v Kern, 52 AD3d 473,473 [2008]; Ayach v Ghazal, 25AD3d 742, 743 [2006]; Waters v City of New York, 278 AD2d 408, 409 [2000]).
Accordingly, the Supreme Court properly granted Perez's motion for summary judgmentdismissing the third-party complaint. Dillon, J.P., Dickerson, Eng and Leventhal, JJ., concur.