| Raimondo v Plunkitt |
| 2013 NY Slip Op 00320 [102 AD3d 851] |
| January 23, 2013 |
| Appellate Division, Second Department |
| Richard D. Raimondo, Respondent, v RobertPlunkitt et al., Appellants, and Andrew Antone, Respondent. |
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In an action to recover damages for personal injuries, the defendants Robert Plunkittand Barbara Plunkitt appeal, as limited by their brief, from so much of an order of theSupreme Court, Suffolk County (Molia, J.), dated August 25, 2011, as granted thatbranch of the plaintiff's motion which was for summary judgment on the issue of liabilityinsofar as asserted against them, and denied their cross motion for summary judgmentdismissing 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 billof costs, that branch of the plaintiff's motion which was for summary judgment on theissue of liability insofar as asserted against the defendants Robert Plunkitt and BarbaraPlunkitt is denied, and those defendants' cross motion for summary judgment dismissingthe complaint and all cross claims insofar as asserted against them is granted.
This action arises out of a three-car, chain collision accident which occurred onRoute 347 in Suffolk County. The plaintiff was the operator of the lead vehicle. Thesecond vehicle was co-owned by the defendants Robert Plunkitt and Barbara Plunkitt(hereinafter together the Plunkitts), and was operated by Robert Plunkitt. The defendantAndrew Antone operated the third vehicle.
"A rear-end collision with a stopped vehicle creates a prima facie case of negligenceagainst the operator of the moving vehicle, thereby requiring that operator to rebut theinference of negligence by providing a non-negligent explanation for the collision" (Hauser v Adamov, 74 AD3d1024, 1025 [2010]). Here, the Plunkitts satisfied their prima facie burden ofestablishing their entitlement to judgment as a matter of law by demonstrating that theirvehicle was stopped behind the plaintiff's vehicle at a red traffic light when it was struckfrom the rear by the vehicle operated by Antone and propelled into the plaintiff's vehicle(see Hill v Ackall, 71 AD3d829 [2010]; Katz v MasadaII Car & Limo Serv., Inc., 43 AD3d 876, 877 [2007]). In opposition, neither theplaintiff nor Antone raised a triable issue of fact. Antone contended that the motion waspremature (see CPLR 3212 [f]), but he failed to demonstrate that discovery mighthave lead to relevant evidence or that facts essential to opposing the motion wereexclusively within the knowledge and control of the Plunkitts (see Kimyagarov v Nixon TaxiCorp., 45 AD3d 736, 737 [2007]).[*2]
Accordingly, the Supreme Court should havedenied that branch of the plaintiff's motion which was for summary judgment on theissue of liability insofar as asserted against the Plunkitts, and should have granted thePlunkitts' cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against them. Dillon, J.P., Balkin, Chambers and Hall, JJ.,concur.