| Martinez v Martinez |
| 2012 NY Slip Op 02089 [93 AD3d 767] |
| March 20, 2012 |
| Appellate Division, Second Department |
| Jose Martinez, Appellant, v Griselda Martinez et al.,Respondents, et al., Defendants. |
—[*1] James G. Bilello, Westbury, N.Y. (Franshone Winn of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (R. Miller, J.), enteredDecember 13, 2010, as granted the motion of the defendants Griselda Martinez and Mia LiMartinez for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendants Griselda Martinez and Mia Li Martinez for summary judgmentdismissing the complaint insofar as asserted against them is denied.
On September 10, 2005, the plaintiff allegedly was injured while riding his bicycle, when hisbicycle struck the rear of a car driven by the defendant Mia Li Martinez and owned by thedefendant Griselda Martinez (hereinafter together the defendants) while traveling on WilloughbyAvenue, a one-way street. During the pendency of this action to recover damages for personalinjuries, the defendants moved for summary judgment dismissing the complaint insofar asasserted against them. The Supreme Court granted the motion.
Vehicle and Traffic Law § 1231 provides: "Every person riding a bicycle. . . upon a roadway shall be granted all of the rights and shall be subject to all ofthe duties applicable to the driver of a vehicle by this title, except as to special regulations in thisarticle and except as to those provisions of this title which by their nature can have noapplication."
When the driver of an automobile approaches another automobile from the rear, he or she isbound to maintain a reasonably safe rate of speed and control over his or her vehicle, and toexercise reasonable care to avoid colliding with the other vehicle (see Scheker v Brown, 85 AD3d1007 [2011]; Ortiz v Hub TruckRental Corp., 82 AD3d 725, 726 [2011]; Nsiah-Ababio v Hunter, 78 AD3d 672, 672 [2010]; see alsoVehicle and Traffic Law § 1129 [a]). Accordingly, a rear-end collision establishes aprima facie case of negligence on the part of the operator of the rear vehicle, thereby requiringthat operator to rebut the inference of negligence by providing a nonnegligent explanation for the[*2]collision (see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]).
In support of their motion for summary judgment, the defendants submitted the depositiontestimony of Mia Li Martinez, which indicated that her vehicle was stopped on WilloughbyAvenue approximately 100 feet from an intersection with Stuyvesant Avenue at the time theplaintiff's bicycle struck her vehicle in the rear. However, they also submitted the depositiontestimony of the plaintiff, who claimed that as he rode off a driveway curb-cut and into the street,the car operated by Mia Li Martinez cut in front of him, without signaling, as if she were going toturn right at the intersection, which caused his bicycle to strike the rear of the car. In light of theconflicting deposition testimony submitted in support of the motion, the defendants failed toeliminate all triable issues of fact (seeCamarillo v Sandoval, 90 AD3d 593 [2011]; Scheker v Brown, 85 AD3d at1007; Reitz v Seagate Trucking,Inc., 71 AD3d 975, 976 [2010]; Oguzturk v General Elec. Co., 65 AD3d 1110, 1111 [2009]; Guerra v Cantos, 38 AD3d 714,715 [2007]; Briceno v Milbry, 16AD3d 448, 449 [2005]; Mohan v Puthumana, 302 AD2d 437 [2003]; Rozengauzv Lok Wing Ha, 280 AD2d 534, 535 [2001]). The plaintiff's testimony was not incredible asa matter of law, and any inconsistencies in his testimony raised an issue of credibility that mustbe resolved by the fact-finder (see Camarillo v Sandoval, 90 AD3d at 593).
Since the defendants did not sustain their prima facie burden, the Supreme Court should havedenied their motion regardless of the sufficiency of the plaintiff's opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Balkin, J.P., Eng, Halland Sgroi, JJ., concur.