| Zweeres v Materi |
| 2012 NY Slip Op 03184 [94 AD3d 1111] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Edward Zweeres, Appellant, v Donald Materi,Respondent. |
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Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling and Susan M. Ulrich ofcounsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Westchester County (Colabella, J.), entered June 29, 2011, whichgranted the defendants' motion for summary judgment dismissing the complaint and denied hiscross motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
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 Nsiah-Ababio v Hunter, 78 AD3d672, 672 [2010]; see also Vehicle and Traffic Law § 1129 [a]). Drivers have aduty to see what should be seen and to exercise reasonable care under the circumstances to avoidan accident (see Filippazzo v Santiago, 277 AD2d 419 [2000]; Johnson vPhillips, 261 AD2d 269 [1999]). However, a driver also has the duty "to not stop suddenly orslow down without proper signaling so as to avoid a collision" (Drake v Drakoulis, 304AD2d 522, 523 [2003]; see Purcell v Axelsen, 286 AD2d 379, 380 [2001]; Colonna vSuarez, 278 AD2d 355 [2000]; see also Vehicle and Traffic Law § 1163 [c]).
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence against the operator of the rear vehicle, thereby requiring that operator to rebut theinference of negligence by providing a nonnegligent explanation for the collision" (Volpe v Limoncelli, 74 AD3d 795[2010] [internal quotation marks omitted]; see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; Parra v Hughes, 79 AD3d 1113,1114 [2010]; DeLouise v S.K.I.Wholesale Beer Corp., 75 AD3d 489, 490 [2010]; Staton v Ilic, 69 AD3d 606 [2010]; Lampkin v Chan, 68 AD3d 727[2009]; Klopchin v Masri, 45 AD3d737, 737 [2007]; Starace v Inner Circle Qonexions, 198 AD2d 493 [1993];Edney v Metropolitan Suburban Bus Auth., 178 AD2d 398, 399 [1991]).
The defendant established his prima facie entitlement to judgment as a matter of law [*2]by submitting evidence in support of his motion that demonstratedthat the plaintiff's motorcycle hit his motorcycle in the rear when it was stopped during a charityride for the March of Dimes. In opposition to the defendant's motion, the plaintiff failed to raise atriable issue of fact as to the existence of a nonnegligent explanation for the rear-end collision.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. For the same reasons, the Supreme Court properly denied theplaintiff's cross motion for summary judgment on the issue of liability. Dillon, J.P., Dickerson,Hall and Austin, JJ., concur.