| Strickland v Tirino |
| 2012 NY Slip Op 06939 [99 AD3d 888] |
| October 17, 2012 |
| Appellate Division, Second Department |
| David Strickland, an Infant, by His Mother and Natural Guardian,Deborah Banks Harrigan, Respondent, and Deborah Banks Harrigan,Respondent-Appellant, v Patrick Tirino, Jr., Respondent, Scott A. Ditzel,Appellant-Respondent, and Andy Jang et al.,Respondents-Appellants. |
—[*1] Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), forplaintiff-respondent-appellant Deborah Banks Harrigan. Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola and Sonia Gassan ofcounsel), for defendants-respondents-appellants Andy Jang and Kwon O. Jang. Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John R. Ferretti of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, etc., the defendant Scott A. Ditzelappeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County(Mahon, J.), dated September 22, 2011, as denied his cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against him, the defendantsAndy Jang and Kwon O. Jang cross-appeal, as limited by their brief, from so much of the sameorder as denied their cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them, and the plaintiff Deborah Banks Harrigan cross-appeals,as limited by her brief, from so much of the same order as denied that branch of her motionwhich was for summary judgment dismissing the counterclaims asserted against her by thedefendants Scott A. Ditzel and Patrick Tirino, Jr.
Ordered that the order is reversed insofar as appealed and cross-appealed from, on the law,with one bill of costs payable by the defendant Patrick Tirino, Jr., to the appellants-respondentsand the respondents-appellants appearing separately and filing separate briefs, that branch of themotion of the plaintiff Deborah Banks Harrigan which was for summary judgment dismissing thecounterclaims asserted against her by the defendants Scott A. Ditzel and Patrick Tirino, Jr., isgranted, the cross motion of the defendants Andy Jang and Kwon O. Jang for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them is granted, and thecross motion of the defendant Scott A. Ditzel for summary judgment dismissing the [*2]complaint and all cross claims insofar as asserted against him isgranted.
On October 26, 2006, while traveling eastbound on the Southern State Parkway,approximately three miles east of Exit 25S, in the left lane, a vehicle driven by the defendantPatrick Tirino, Jr. struck the rear of a stopped vehicle operated by the defendant Scott A. Ditzel.In turn, Ditzel's vehicle was propelled into the rear of a stopped vehicle owned by the defendantAndy Jang and operated by the defendant Kwon O. Jang. The Jangs' vehicle was then propelledinto the rear of a vehicle operated by the plaintiff Deborah Banks Harrigan (hereinafter themoving plaintiff), in which the infant plaintiff David Strickland was a passenger.
"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 Denezzo vJoseph, 95 AD3d 1060, 1060 [2012]; Balducci v Velasquez, 92 AD3d 626, 628 [2012]). Therefore, "arear-end collision establishes a prima facie case of negligence on the part of the operator of therear vehicle, thereby requiring that operator to rebut the inference of negligence by providing anonnegligent explanation for the collision" (Martinez v Martinez, 93 AD3d at 768;see Denezzo v Joseph, 95 AD3d at 1060; Giangrasso v Callahan, 87 AD3d 521, 522 [2011]). "Evidence thata vehicle was struck in the rear and propelled into the vehicle in front of it may provide asufficient non-negligent explanation" (Ortiz v Haidar, 68 AD3d 953, 954 [2009]; see Katz v Masada II Car & Limo Serv.,Inc., 43 AD3d 876, 877 [2007]; Harris v Ryder, 292 AD2d 499, 500 [2002];see also Chamberlin v Suffolk County Labor Dept., 221 AD2d 580, 580-581 [1995]).
The deposition testimony of the parties demonstrated that Kwon O. Jang came to a full stopbehind the plaintiffs' vehicle, and that Ditzel's vehicle, which was following the Jangs' vehicle,also came to a full stop before it was struck by Tirino's vehicle and propelled into the Jangs'vehicle. Upon being propelled by the impact with Ditzel's vehicle, the Jangs' vehicle struck theplaintiffs' vehicle in the rear. The moving plaintiff established through the parties' depositiontestimony, which she submitted in support of her motion, that her actions were not a proximatecause of the accident (see Denezzo v Joseph, 95 AD3d at 1060; Martinez vMartinez, 93 AD3d at 768). In opposition to the motion of the moving plaintiff for summaryjudgment dismissing the counterclaims interposed against her, no triable issue of fact was raised.Contrary to Tirino's contention, the mere fact that the plaintiffs' vehicle may have been in motionwhen the Jangs' vehicle was propelled into it did not raise a triable issue of fact as to whetherthere was a nonnegligent reason for his colliding with the rear of Ditzel's vehicle, thereby settinginto motion a chain of events which resulted in the plaintiffs' vehicle being struck in the rear(see Inzano v Brucculeri, 257 AD2d 605, 605 [1999]).
Similarly, the Jangs and Dietzel demonstrated that their conduct was not a proximate causeof the collision, thereby establishing their prima facie entitlement to judgment as a matter of lawdismissing the complaint and all cross claims insofar as asserted against each of them (seeOrtiz v Haidar, 68 AD3d at 953; Katz v Masada II Car & Limo Serv., Inc., 43 AD3dat 877; Ner v Celis, 245 AD2d 278, 278 [1997]; Chamberlin v Suffolk County LaborDept., 221 AD2d at 580). No triable issue of fact was raised in opposition to their respectivemotions.
Accordingly, the Supreme Court should have granted the moving plaintiff's motion forsummary judgment dismissing the counterclaims against her by Ditzel and Tirino, the Jangs'cross motion for summary judgment dismissing the complaint and all cross claims insofar asasserted against them, and Ditzel's cross motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against him. Dillon, J.P., Leventhal, Austin and Roman,JJ., concur.