| Hanakis v DeCarlo |
| 2012 NY Slip Op 06281 [98 AD3d 1082] |
| September 26, 2012 |
| Appellate Division, Second Department |
| Maria Hanakis et al., Respondents, v Elaine A. DeCarlo etal., Appellants, and Kaleekal J. Baby et al., Respondents. (And AnotherTitle.) |
—[*1] Sacco & Fillas, LLP, Whitestone, N.Y. (Luigi Brandimarte of counsel), forplaintiffs-respondents. Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for defendants-respondentsKaleekal J. Baby and Philip Sony Mammen.
In an action, inter alia, to recover damages for personal injuries, etc., the defendants ElaineA. DeCarlo and Andrew DeCarlo appeal from (1) an order of the Supreme Court, Queens County(McDonald, J.), entered July 25, 2011, which granted the motion of the defendant Jian Chen forsummary judgment dismissing the complaint and all cross claims insofar as asserted against him,granted the cross motion of the defendants Kaleekal J. Baby and Philip Sony Mammen forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstthem, and granted the plaintiffs' cross motion for summary judgment on the issue of the liabilityof the defendants Elaine A. DeCarlo and Andrew DeCarlo, and (2) a judgment of the same courtentered October 20, 2011, which, upon the order, dismissed the complaint insofar as assertedagainst the defendants Jian Chen, Kaleekal J. Baby, and Philip Sony Mammen and, in effect,dismissed all of the cross claims asserted by the defendants Elaine A. DeCarlo and AndrewDeCarlo against those defendants.
Ordered that the appeal from so much of the order as granted those branches of the motion ofthe defendant Jian Chen and the cross motion of the defendants Kaleekal J. Baby and Philip SonyMammen which were for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against each of them is dismissed; and it is further,
Ordered that the appeal from so much of the judgment as dismissed the complaint insofar asasserted against the defendants Jian Chen, Kaleekal J. Baby, and Philip Sony Mammen isdismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,[*2]
Ordered that one bill of costs is awarded to theplaintiffs-respondents and the defendants-respondents Kaleekal J. Baby and Philip SonyMammen, appearing separately and filing separate briefs.
The appeal from so much of the intermediate order as granted those branches of the motionof the defendant Jian Chen and the cross motion of the defendants Kaleekal J. Baby and PhilipSony Mammen which were for summary judgment dismissing the complaint insofar as assertedagainst each of them, as well as the appeal from so much of the judgment as dismissed thecomplaint insofar as asserted against those three defendants, must be dismissed on the groundthat the appellants are not aggrieved by those portions of the order and the judgment (seeCPLR 5511; Mixon v TBV, Inc., 76AD3d 144, 156 [2010]). The appeal from so much of the intermediate order as granted thosebranches of the motion of the defendant Jian Chen and the cross motion of the defendantsKaleekal J. Baby and Philip Sony Mammen which were for summary judgment dismissing allcross claims insofar as asserted as against them must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]), and the issues raised on the appeal from those portions of the orderare brought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
This case stems from an accident involving four vehicles. According to the depositiontestimony of the defendant Elaine A. DeCarlo (hereinafter DeCarlo), she was operating hervehicle, owned by the defendant Andrew DeCarlo (hereinafter together the appellants) instop-and-go traffic when she took her eyes off the road to address her children, who were in theback seats. About 10 seconds later, she turned around to face the road again, and she saw theplaintiffs' vehicle in the stopped position, about three car lengths in front of her. About fiveseconds later, her vehicle struck the plaintiffs' vehicle in the rear. According to DeCarlo, as aresult of the impact, the plaintiffs' vehicle came into contact with a third vehicle, which in turncame into contact with a fourth vehicle.
According to the deposition testimony of the plaintiff driver, Maria Hanakis (hereinafterHanakis), at the time of the accident, she was operating a vehicle owned by her husband, theplaintiff Nikolas Hanakis. The plaintiffs' vehicle was stopped for two to four seconds when it wasstruck in the rear by the appellants' vehicle. As a result, Hanakis stated that her vehicle came intocontact with a third vehicle. According to the deposition testimony of the defendant Philip SonyMammen, the driver of the third vehicle, his vehicle was stopped behind a fourth vehicle whenhe saw the plaintiffs' vehicle stopped behind his vehicle prior to the accident. Mammen heard anoise, and then he felt the plaintiffs' vehicle strike his vehicle in the rear. As a result, his vehiclewas propelled forward into the fourth vehicle.
According to the deposition testimony of Jian Chen, the driver of the fourth vehicle, whilehis vehicle was stopped, he saw the Mammen vehicle stopped behind him. He also saw theplaintiffs' vehicle strike the Mammen vehicle in its rear. As a result, the Mammen vehicle waspropelled forward and struck his vehicle in the rear. About 10 seconds later, Jian Chen heard anoise. He assumed that it was the contact between the plaintiffs' vehicle and the DeCarlo vehicle.
The Supreme Court properly granted the plaintiffs' cross motion for summary judgment onthe issue of liability against the appellants. "A rear-end collision with a stopped vehicle creates aprima facie case of negligence against the operator of the moving vehicle, thereby requiring thatoperator to rebut the inference of negligence by providing a non-negligent explanation for thecollision" (Hauser v Adamov, 74AD3d 1024, 1025 [2010]). Here, the plaintiffs established their prima facie entitlement tojudgment as a matter of law by demonstrating that their vehicle was stopped when it was struckin the rear by the vehicle operated by DeCarlo (see Perez v Roberts, 91 AD3d 620, 621 [2012]; Giangrasso v Callahan, 87 AD3d521, 522 [2011]; Hauser v Adamov, 74 AD3d at 1025). In opposition, the appellantsfailed to raise a triable issue of fact. Contrary to the appellants' contention, Jian Chen's depositiontestimony was vague and insufficient to raise a triable issue of fact as to the order of the impacts(see Levine v Taylor, 268 AD2d 566 [2000]). Therefore, Jian Chen's depositiontestimony did not adequately rebut the inference of negligence, and failed to raise a triable issueof fact as to the cause of the plaintiffs' injuries (see Perez v Roberts, 91 AD3d at621-622; [*3]Hauser v Adamov, 74 AD3d at 1025).
The appellants' remaining contentions are without merit. We decline the plaintiffs' request toimpose a sanction upon the appellants for pursuing an allegedly frivolous appeal (see 22NYCRR 130-1.1). Balkin, J.P., Leventhal, Hall and Cohen, JJ., concur. [Prior Case History:32 Misc 3d 1218(A), 2011 NY Slip Op 51358(U).]