| Ramos v TC Paratransit |
| 2012 NY Slip Op 04987 [96 AD3d 924] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Jimmy Ramos et al., Appellants, v TC Paratransit et al.,Respondents. |
—[*1] Law Offices of Jeffrey S. Shein & Associates, P.C., Syosset, N.Y. (Charles H. Strugatz ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Kings County (Silber, J.), dated September 22, 2011, which denied theirmotion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
On May 14, 2008, on Flatlands Avenue in Brooklyn, near its intersection with 107th Street, avehicle owned and operated by the plaintiff Jimmy Ramos (hereinafter the plaintiff driver), inwhich his wife, the plaintiff Jenny Ramos, was a passenger, was struck in the rear by anAccess-A-Ride bus, operated by the defendant Dominique Rosemond and owned by thedefendant New York City Transit Authority (hereinafter NYCTA). The bus was leased fromNYCTA by the defendant TC Paratransit, Rosemond's employer.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle and imposes a duty on that operatorto rebut the inference of negligence by providing a nonnegligent explanation for the collision"(Pollard v Independent Beauty & BarberSupply Co., 94 AD3d 845, 845-846 [2012]; see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; Giangrasso v Callahan, 87 AD3d521, 522 [2011]; Scheker vBrown, 85 AD3d 1007, 1007 [2011]; Plummer v Nourddine, 82 AD3d 1069, 1069 [2011]; Vargas v Luxury Family Corp., 77AD3d 820, 820 [2010]; Volpe vLimoncelli, 74 AD3d 795 [2010]). A nonnegligent explanation may include evidence ofa mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wetpavement or any other reasonable cause (see Fajardo v City of New York, 95 AD3d 820, 821 [2d Dept2012]; Vargas v Luxury Family Corp., 77 AD3d at 820-821; DeLouise v S.K.I. Wholesale BeerCorp., 75 AD3d 489, 490 [2010]; Klopchin v Masri, 45 AD3d 737, 738 [2007]; Morrison v Montzoutsos, 40 AD3d717, 717-718 [2007]; Gaeta vCarter, 6 AD3d 576, 576 [2004]).
Here, the plaintiffs established, prima facie, their entitlement to judgment as a matter of lawon the issue of liability by demonstrating that their vehicle was stopping when it was struck in therear by the bus operated by Rosemond.
In opposition, the defendants submitted, inter alia, Rosemond's affidavit, in which [*2]he stated that, while he was traveling approximately 20 miles perhour approximately three to four car lengths behind the plaintiffs' vehicle, the plaintiff driversuddenly and without warning stopped the plaintiffs' vehicle in the left lane of moving traffic inorder to make an illegal left turn onto 107th Street or an illegal U-turn from westbound FlatlandsAvenue onto eastbound Flatlands Avenue, at a point where such turns were prohibited. Aphotograph of the area where the accident occurred, submitted as an exhibit by the defendants,demonstrated that no turns from Flatlands Avenue are permitted at the point where the accidentoccurred. Thus, the defendants raised a triable issue of fact as to whether the plaintiff drivernegligently operated his vehicle, thereby contributing to or causing the accident (see Vargas vLuxury Family Corp., 77 AD3d at 820-821; Klopchin v Masri, 45 AD3d at 738;Morrison v Montzoutsos, 40 AD3d at 717-718).
Contrary to the plaintiffs' contention, Rosemond's affidavit was not inconsistent with hisdeposition testimony describing how the accident occurred, a transcript of which had beensubmitted as an exhibit by both the plaintiffs and the defendants (see Jahangir v Logan Bus Co., Inc., 89AD3d 1064, 1064 [2011]; Kievmanv Philip, 84 AD3d 1031, 1033 [2011]; Carter v Grenadier Realty, 83 AD3d 640, 641 [2011]; Gleason v City of New York, 68 AD3d1054, 1056 [2009]; Barco v GreenBus Lines, Inc., 62 AD3d 923, 924 [2009]). Therefore, the affidavit did not constitute anattempt by the defendants to create a feigned issue of fact, and was properly considered by theSupreme Court (see Jahangir v Logan Bus Co., Inc., 89 AD3d at 1064; Kievman vPhilip, 84 AD3d at 1033; Carter v Grenadier Realty, 83 AD3d at 641; Gleason vCity of New York, 68 AD3d at 1056; Barco v Green Bus Lines, Inc., 62 AD3d at924).
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summaryjudgment on the issue of liability. Dillon, J.P., Eng, Austin and Sgroi, JJ., concur.