| Hauswirth v Transcare N.Y., Inc. |
| 2012 NY Slip Op 05723 [97 AD3d 792] |
| July 25, 2012 |
| Appellate Division, Second Department |
| Rosalie Hauswirth, Respondent, v Transcare New York,Inc., et al., Defendants and Third-Party Plaintiffs-Respondents-Appellants. Ann Soehngen,Third-Party Defendant-Appellant. |
—[*1] Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and GregoryS. Katz of counsel), for defendants/third-party plaintiffs-respondents-appellants. Zemsky & Salomon, P.C., Hempstead, N.Y. (David Zemsky of counsel),for respondent.
In an action to recover damages for personal injuries, the third-party defendant appeals fromso much of an order of the Supreme Court, Kings County (Silber, J.), dated November 10, 2011,as denied her motion for summary judgment dismissing the third-party complaint, and thedefendants and third-party plaintiffs cross-appeal from so much of the same order as granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, and the motion of thethird-party defendant for summary judgment dismissing the third-party complaint is granted; andit is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the third-party defendant and the plaintiff.
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 Power v Hupart,260 AD2d 458 [1999]; see also Vehicle and Traffic Law § 1129 [a]). Drivers havea duty to see what should be seen and to exercise reasonable care under the circumstances toavoid an accident (see Maragos vSakurai, 92 AD3d 922, 923 [2012]; Balducci v Velasquez, 92 AD3d 626, 628 [2012]; Filippazzo vSantiago, 277 AD2d 419 [2000]; Johnson v Phillips, 261 AD2d 269 [1999]).However, a driver also has the duty "to not stop suddenly or slow down without proper signalingso as to avoid a collision" (Drake v Drakoulis, 304 [*2]AD2d 522, 523 [2003]; see Purcell v Axelsen, 286 AD2d379, 380 [2001]; Colonna v Suarez, 278 AD2d 355, 355 [2000]; see also Vehicleand Traffic Law § 1163).
"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 795,795 [2010] [internal quotation marks omitted]; see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; Martinez v Martinez, 93 AD3d767, 768 [2012]; Giangrasso vCallahan, 87 AD3d 521 [2011]; Parra v Hughes, 79 AD3d 1113 [2010]; DeLouise v S.K.I. Wholesale BeerCorp., 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]). Evidence that a vehicle was struck in the rear and propelled into thevehicle in front of it may provide a sufficient nonnegligent explanation (see Katz v Masada II Car & Limo Serv.,Inc., 43 AD3d 876, 877 [2007]; Harris v Ryder, 292 AD2d 499, 500 [2002]).
The plaintiff and Ann Soehngen, the third-party defendant, established in support of theirrespective motions for summary judgment that both of their vehicles were at a complete stopwhen a vehicle operated by the defendant Andrew Peter Cimino and owned by the defendantTranscare New York, Inc. (hereinafter together Transcare), struck the plaintiff's vehicle in therear, which propelled the plaintiff's vehicle into the rear of Soehngen's vehicle. They alsoestablished on their respective motions that Cimino, just prior to the impact of his vehicle withthe rear of the plaintiff's vehicle, took his eyes from the road, and when he turned his attentionback to the road, he saw the plaintiff's vehicle already stopped behind Soehngen's vehicle, butwas unable to stop in time to avoid striking the plaintiff's vehicle in the rear.
Under these circumstances, Soehngen established her prima facie entitlement to judgment asa matter of law by demonstrating that her vehicle was stopped when the accident occurred (see Balducci v Velasquez, 92 AD3d626 [2012]), and that Cimino was the sole proximate cause of the accident due to his owninattentiveness in taking his eyes off the road in the direction he was traveling (see Giangrasso v Callahan, 87 AD3d521 [2011]). The plaintiff established her prima facie entitlement to judgment as a matter oflaw by demonstrating that her vehicle was stopped when the Transcare vehicle struck her vehiclefrom the rear and propelled her vehicle into the rear of the Soehngen vehicle (see Balducci vVelasquez, 92 AD3d at 626; see also Katz v Masada II Car & Limo Serv., Inc., 43AD3d at 877; Harris v Ryder, 292 AD2d at 500).
Contrary to Transcare's contention on appeal, it failed to raise a triable issue of fact as towhether any of the actions of the driver of the plaintiff's vehicle or of Soehngen immediatelyprior to the accident was a proximate cause of the accident so as to provide a nonnegligentexcuse for the collision into the rear of the plaintiff's vehicle.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the issue of liability, and should have granted Soehngen's motion for summaryjudgment dismissing the third-party complaint.
Transcare's remaining contention is without merit. Dillon, J.P., Leventhal, Austin andRoman, JJ., concur.