| Xian Hong Pan v Buglione |
| 2012 NY Slip Op 08300 [101 AD3d 706] |
| December 5, 2012 |
| Appellate Division, Second Department |
| Xian Hong Pan et al., Respondents, v Michael Buglione,Respondent, and Yufen Wang et al., Appellants. |
—[*1] Steven Louros, New York, N.Y., for plaintiffs-respondents. Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of counsel), fordefendant-respondent.
In an action to recover damages for personal injuries, etc., the defendants Yufen Wang andGeorge Lee appeal, as limited by their brief, from so much of an order of the Supreme Court,Queens County (Markey, J.), dated September 16, 2011, as denied their motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable by the respondents appearing separately and filing separate briefs, and the motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted againstYufen Wang and George Lee is granted.
The injured plaintiff Xian Hong Pan was a passenger in a vehicle operated by the defendantYufen Wang and owned by the defendant George Lee, which was struck from the rear by avehicle owned and operated by the defendant Michael Buglione in the westbound HOV lane ofthe Long Island Expressway. The injured plaintiff, and her husband suing derivatively,commenced this action against the defendants. Yufen Wang and Lee moved for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them on theground that Buglione alone was negligent in causing this accident. The Supreme Court deniedthat motion, and this appeal ensued.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle and imposes a duty on that operatorto rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v County of Suffolk, 10NY3d 906, 908 [2008]; Zdenek vSafety Consultants, Inc., 63 AD3d 918 [2009]; Ramirez v Konstanzer, 61 AD3d 837 [2009]; Jumandeo v Franks, 56 AD3d 614[2008]). The claim that the lead vehicle made a sudden stop, standing alone, is insufficient torebut the presumption of negligence on the part of the following vehicle (see Kastritsios v Marcello, 84 AD3d1174 [2011]; Franco v Breceus, [*2]70 AD3d 767[2010]; Mallen v Su, 67 AD3d974 [2009]; Rainford v Sung S.Han, 18 AD3d 638 [2005]; Russ v Investech Sec., 6 AD3d 602 [2004]).
Here, Yufen Wang and Lee established their prima facie entitlement to judgment as a matterof law by submitting evidence that Buglione's vehicle struck their vehicle in the rear as it wasslowing down for the traffic condition ahead of it. In opposition, the plaintiffs and Buglionefailed to submit evidence sufficient to raise a triable issue of fact as to whether Yufen Wangcontributed to the accident. In his deposition, Buglione described the traffic condition as stop andgo, and testified that he saw that the traffic ahead of Yufen Wang's vehicle was slowing downwhen Yufen Wang applied her brake (see Kastritsios v Marcello, 84 AD3d 1174 [2011]; Jumandeo v Franks, 56 AD3d 614[2008]; Arias v Rosario, 52 AD3d551 [2008]; Harrington v Kern,52 AD3d 473 [2008]). Accordingly, the Supreme Court should have granted the motion ofYufen Wang and Lee for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them. Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.