| Denezzo v Joseph |
| 2012 NY Slip Op 03799 [95 AD3d 1060] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Gary Denezzo, Respondent, v Reginald Joseph et al.,Appellants. (Action No. 1.) Reginald Joseph, Appellant, v Gary Denezzo et al., Respondents.(Action No. 2.) |
—[*1] Ginsburg & Misk, Queens Village, N.Y. (Gerard N. Misk of counsel), forrespondents.
In related actions to recover damages for personal injuries, which were joined for trial,Reginald Joseph, a defendant in action No. 1 and the plaintiff in action No. 2, and John Jacob, adefendant in action No. 1, appeal, as limited by their brief, from so much of an order of theSupreme Court, Kings County (Ruchelsman, J.), dated August 23, 2011, as, upon reargument,vacated its original determination in an order dated February 28, 2011, granting their motion forsummary judgment dismissing the complaint in action No. 1, and thereupon denied that motion.
Ordered that the order dated August 23, 2011, is affirmed insofar as appealed from, withcosts.
Gary Denezzo, the plaintiff in action No. 1, allegedly was injured when the front of his carcollided with the rear of a car driven by Reginald Joseph, and owned by John Jacob, thedefendants in action No. 1 (hereinafter together the defendants). The defendants moved forsummary judgment dismissing the complaint in action No. 1. Upon reargument, the SupremeCourt vacated its original determination granting the defendants' motion for summary judgment,and instead denied that motion.
"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" (Martinez v Martinez, 93 AD3d767, 768 [2012]; see Balducci vVelasquez, 92 AD3d 626 [2012]). Therefore, "a rear-end collision establishes a primafacie case of negligence on the part of the operator of the rear vehicle, thereby requiring thatoperator to rebut the inference of negligence by providing a nonnegligent explanation for thecollision" (Martinez v Martinez, 93 AD3d at 768; see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; Giangrasso v Callahan, 87 AD3d521 [2011]).[*2]
Here, in support of their motion, the defendants reliedupon Joseph's deposition testimony that he was driving, with his hazard lights illuminated, at therate of 25 to 30 miles per hour in the right westbound lane of the Grand Central Parkway behinda coworker who was losing air from his tires, when Denezzo's vehicle collided with the rear ofJoseph's vehicle. However, the defendants also submitted a transcript of Denezzo's depositiontestimony, in which Denezzo averred that he was driving within the speed limit on the parkwaywhen the vehicle in front of him suddenly swerved to avoid Joseph's vehicle, which was stoppedon the parkway without its hazard lights illuminated. According to Denezzo, he could not stop intime to avoid the collision. In light of Denezzo's deposition testimony submitted in support of themotion, the defendants failed to eliminate all triable issues of fact as to Joseph's allegednegligence (see Tutrani v County of Suffolk, 10 NY3d at 908; Vargas v Luxury Family Corp., 77AD3d 820 [2010]). Accordingly, upon reargument, the Supreme Court properly vacated itsoriginal determination granting the defendants' motion for summary judgment dismissing thecomplaint in action No. 1, and thereupon denied that motion. Skelos, J.P., Florio, Belen andSgroi, JJ., concur.