| Fajardo v City of New York |
| 2012 NY Slip Op 03402 [95 AD3d 820] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Marcia Fajardo et al., Appellants, v City of New York etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Julian L. Kalkstein and DianaLawless of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Queens County (Flug, J.), dated October 26, 2010, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
While attempting to change lanes on Queens Boulevard, a vehicle operated by the plaintiffMarcia Fajardo (hereinafter Fajardo) was struck in the rear by a New York City Fire Departmentfire rescue truck that was responding to an emergency.
"[T]he reckless disregard standard of care in Vehicle and Traffic Law § 1104 (e) onlyapplies when a driver of an authorized emergency vehicle involved in an emergency operationengages in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law§ 1104 (b). Any other injury-causing conduct of such a driver is governed by the principlesof ordinary negligence" (Kabir v Countyof Monroe, 16 NY3d 217, 220 [2011]; see Katanov v County of Nassau, 91 AD3d 723 [2012]). Here, thefire rescue truck struck Fajardo's vehicle approximately 30 seconds after the traffic signalcontrolling the lane in which both vehicles were traveling changed from red to green, and whilethe fire rescue truck was decelerating from approximately 15 miles per hour inmoderate-to-heavy traffic conditions. Vehicle and Traffic Law § 1104 (b) does not exemptthe driver of an authorized emergency vehicle engaged in an emergency operation from the rulethat prohibits a driver of a vehicle from following too closely behind another vehicle (seeVehicle and Traffic Law § 1129 [a]). Therefore, the driver of the fire rescue truck was notengaged in the specific conduct exempted from the rules of the road by Vehicle and Traffic Law§ 1104 (b), and, thus, the principles of ordinary negligence apply (see Gonzalez v City of New York, 91AD3d 582 [2012]; Tatishev v Cityof New York, 84 AD3d 656, 657 [2011]).
" 'A driver of a vehicle approaching another vehicle from the rear is required to maintain areasonably safe distance and rate of speed under the prevailing conditions to avoid colliding withthe other vehicle' " (Ortiz v Hub TruckRental Corp., 82 AD3d 725, 726 [2011], quoting [*2]Nsiah-Ababio v Hunter, 78 AD3d672, 672 [2010]). Thus, "a rear-end collision establishes a prima facie case of negligence onthe part of the operator of the rear vehicle, thereby requiring that operator to rebut the inferenceof negligence by providing a nonnegligent explanation for the collision" (Ortiz v Hub TruckRental Corp., 82 AD3d at 726). A nonnegligent explanation may include that a plaintiffmade a sudden lane change in front of a defendant's vehicle, forcing the defendant to stopsuddenly (id.; see Reitz vSeagate Trucking, Inc., 71 AD3d 975, 976 [2010]).
Here, the defendants failed to demonstrate their prima facie entitlement to judgment as amatter of law in light of the conflicting versions regarding the happening of the accident. NewYork City Fire Department Lieutenant James Carney testified at his deposition that the firerescue truck was in the center lane when Fajardo's vehicle cut across three lanes of traffic, fromthe left lane to the right lane, but was unable to completely enter the right lane before the firerescue truck struck her vehicle (see Ortiz v Hub Truck Rental Corp., 82 AD3d at 726).However, according to the testimony given by Fajardo at a hearing pursuant to GeneralMunicipal Law § 50-h, which was offered as part of the defendants' moving papers, shewas in the far left lane with the fire rescue truck immediately behind her. Fajardo testified that, inorder to get out of the fire rescue truck's path, she attempted to move her vehicle into the centerlane, but was unable to complete the lane change because of traffic ahead of her. She furthertestified that the fire rescue truck then struck her vehicle on the rear driver's side. Thus, thedefendants' own submissions raised factual issues regarding how the accident occurred, andwhether the driver of the fire rescue truck should have anticipated that Fajardo would not be ableto complete her lane change under the moderate-to-heavy traffic conditions on Queens Boulevard(see Volpe v Limoncelli, 74 AD3d795, 795-796 [2010]; Staton vIlic, 69 AD3d 606, 607 [2010]).
Accordingly, the defendants' motion for summary judgment dismissing the complaint shouldhave been denied. Rivera, J.P., Chambers, Roman and Sgroi, JJ., concur.