| Taing v Drewery |
| 2012 NY Slip Op 07657 [100 AD3d 740] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Srun Taing, Appellant, v Tiera N. Drewery,Respondent. |
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In an action to recover damages for personal injuries, the plaintiff appeals (1) from an orderof the Supreme Court, Kings County (Ruchelsman, J.), dated June 10, 2011, which denied hismotion for summary judgment on the issue of liability, and (2) as limited by his brief, from somuch of an order of the same court dated January 10, 2012, as, in effect, upon reargument,adhered to the original determination.
Ordered that the appeal from the order dated June 10, 2011, is dismissed, as that order wassuperseded by the order dated January 10, 2012, made, in effect, upon reargument; and it isfurther,
Ordered that the order dated January 10, 2012, is reversed insofar as appealed from, on thelaw, upon reargument, the order dated June 10, 2011, is vacated, and the plaintiff's motion forsummary judgment on the issue of liability is granted; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
On August 20, 2008, the defendant was driving across the Brooklyn Bridge from Brooklyn toManhattan. She testified at her deposition that her highest rate of speed between stops in the"stop-and-go" traffic was only five miles per hour. She further testified that the car that had beendriving in front of her for about five minutes, which was driven by the plaintiff, "slammed" itsbrakes, so she "slammed" her brakes in response. She further testified that her car was only fourfeet behind the plaintiff's car five seconds before the accident, and that her car hit the plaintiff'scar, although the airbags did not deploy.
The plaintiff commenced the instant action, alleging that he had sustained serious injuries asa result of the collision, and subsequently moved for summary judgment on the issue of liability.By order dated June 10, 2011, the Supreme Court denied the motion, determining that theplaintiff's deposition testimony that he made a sudden stop was sufficient to raise a triable issueof fact to rebut the inference that the defendant was negligent. The plaintiff then moved for leaveto reargue his motion for summary judgment. By order dated January 10, 2012, the SupremeCourt, in effect, granted the motion for leave to reargue but adhered to its original determination.The [*2]plaintiff appeals.
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 Gaeta v Carter, 6 AD3d 576,576-577 [2004]; Power v Hupart, 260 AD2d 458 [1999]; Vehicle and Traffic Law§ 1129 [a]). However, the frontmost driver also has the duty to avoid stopping suddenly orslowing down without signaling to avoid a collision (see Chepel v Meyers, 306 AD2d235, 236 [2003]; Purcell v Axelsen, 286 AD2d 379, 380 [2001]).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law bydemonstrating that his car was struck from behind by the defendant's car. In opposition, thedefendant failed to raise a triable issue of fact. Contrary to the Supreme Court's conclusion, theplaintiff's testimony that he made a sudden stop did not raise a triable issue of fact (see generally Stukas v Streiter, 83AD3d 18, 24 [2011]). Even if the plaintiff did, in fact, come to a sudden stop, "vehicle stopswhich are foreseeable under the prevailing traffic conditions, even if sudden and frequent, mustbe anticipated by the driver who follows, since he or she is under a duty to maintain a safedistance between his or her car and the car ahead" (Shamah v Richmond County AmbulanceServ., 279 AD2d 564, 565 [2001], citing Vehicle and Traffic Law § 1129 [a]; seeLeal v Wolff, 224 AD2d 392, 394 [1996]). Here, in heavy traffic in which her car never wentfaster than five miles per hour, the defendant failed to raise a triable issue of fact as to whethershe maintained a safe distance between her car and the plaintiff's car and anticipated that theplaintiff might come to a sudden stop. Accordingly, the Supreme Court should have, uponreargument, granted the plaintiff's motion for summary judgment on the issue of liability. Eng,P.J., Florio, Sgroi and Miller, JJ., concur.