| Menelas v Yearwood-Bobb |
| 2012 NY Slip Op 07278 [100 AD3d 603] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Jacquelin J. Menelas et al., Respondents, v DebrahYearwood-Bobb et al., Appellants. |
—[*1] Stefano A. Filippazzo, P.C., Brooklyn, N.Y. (Louis A. Badolato and David Shumer ofcounsel), for respondents. Nancy I. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), for respondent JeanF. Joseph on the counterclaim.
In an action to recover damages for personal injuries, the defendants appeal from (1) an orderof the Supreme Court, Kings County (Partnow, J.), dated February 28, 2012, which granted theplaintiffs' motion for summary judgment on the issue of liability and granted the separate motionof the plaintiff Jean F. Joseph for summary judgment dismissing the defendants' counterclaim,and (2) an interlocutory judgment of the same court entered April 11, 2012, which, upon theorder, is in favor of the plaintiffs and against them on the issue of liability and in favor of theplaintiff Jean F. Joseph and against them dismissing the counterclaim.
Ordered that the appeal from the order is dismissed, as the order was superseded by theinterlocutory judgment; and it is further,
Ordered that the interlocutory judgment is reversed, on the law, the plaintiffs' motion forsummary judgment on the issue of liability is denied, the separate motion of the plaintiff Jean F.Joseph for summary judgment dismissing the defendants' counterclaim is denied, and the order ismodified accordingly; and it is further,
Ordered that one bill of costs is awarded to the defendants.
At or near the intersection of Linden Boulevard and Brooklyn Avenue in Brooklyn, a vehicleowned by the defendant Debrah Yearwood-Bobb and operated by the defendant Patrick R. Bobbstruck the rear of a vehicle owned and operated by the plaintiff Jean F. Joseph. The plaintiffJacquelin J. Menelas was a passenger in Joseph's vehicle. The plaintiffs commenced this actionto recover damages for personal injuries. The defendants answered and asserted a counterclaimagainst Joseph, alleging that any injuries sustained by the plaintiffs were due to his negligence inoperating his vehicle. The plaintiffs thereafter moved for summary judgment on the issue ofliability against [*2]the defendants. Additionally, Josephseparately moved for summary judgment dismissing the defendants' counterclaim. The SupremeCourt granted both the plaintiffs' motion and Joseph's separate motion. The defendants appeal.
" 'A driver of a vehicle approaching another vehicle from the rear is required to maintain areasonably safe distance and rate of speed under the prevailing conditions to avoid colliding withthe other vehicle' " (Ortiz v Hub TruckRental Corp., 82 AD3d 725, 726 [2011], quoting Nsiah-Ababio v Hunter, 78 AD3d 672, 672 [2010]). Accordingly, "'[a] rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligenceagainst the operator of the rear vehicle, thereby requiring that operator to rebut the inference ofnegligence by providing a nonnegligent explanation for the collision' " (Hauswirth v Transcare N.Y., Inc., 97AD3d 792, 793 [2012], quoting Volpe v Limoncelli, 74 AD3d 795, 795 [2010]). "[E]vidence that aplaintiff's vehicle made a sudden lane change directly in front of a defendant's vehicle, forcingthat defendant to stop suddenly, is sufficient to rebut the inference of negligence" (Ortiz vHub Truck Rental Corp., 82 AD3d at 726; see Reitz v Seagate Trucking, Inc., 71 AD3d 975, 976 [2010]).
Here, the plaintiffs established their prima facie entitlement to judgment as matter of law onthe issue of liability by submitting an affidavit sworn to by Joseph. According to him, as he wasapproaching a red traffic light at the intersection of Linden Boulevard and Brooklyn Avenue, andsafely bringing his vehicle to a stop, his vehicle was struck in the rear by the defendants' vehicle.In opposition, however, the defendants raised a triable issue of fact as to whether they had anonnegligent explanation for the collision by submitting an affidavit sworn to by Bobb, the driverof the defendants' vehicle. According to Bobb, prior to impact, Joseph's vehicle began to make aright turn onto Brooklyn Avenue. As Bobb explained it, Joseph's vehicle was unable to completethe turn, and it swerved back into the lane of travel in which the defendants' vehicle was moving.Bobb stated that he was unable to stop in time to avoid contact with Joseph's vehicle because ithad suddenly veered back into his path after it was unable to make the turn onto the intersectingstreet. Since a triable issue of fact exists as to whether Joseph caused or contributed to theaccident, the Supreme Court erred in resolving the conflicts in the affidavits in the plaintiffs'favor (see Ortiz v Hub Truck RentalCorp., 82 AD3d 725, 727 [2011]; Anyanwu v Johnson, 276 AD2d 572, 573[2000]).
Contrary to the plaintiffs' contentions, it cannot be said that the statements contained inBobb's affidavit were made in an attempt to create a feigned issue of fact (see Pollard v Independent Beauty & BarberSupply Co., 94 AD3d 845 [2012]). Eng, P.J., Florio, Sgroi and Miller, JJ., concur.