| Hearn v Manzolillo |
| 2013 NY Slip Op 00894 [103 AD3d 689] |
| February 13, 2013 |
| Appellate Division, Second Department |
| Jennifer Hearn, Respondent, v Jonathan A.Manzolillo et al., Defendants, and Mauricio A. Alvarado et al.,Appellants. |
—[*1] Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (Keri A. Wehrheim of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants Mauricio A.Alvarado and Salem Truck Leasing, Inc., appeal (1) from an order of the Supreme Court,Suffolk County (Gazzillo, J.), dated December 30, 2010, which denied their motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them, and (2), as limited by their brief, from so much of an order of the samecourt dated January 23, 2012, as, upon renewal, adhered to the original determination.
Ordered that the appeal from the order dated January 23, 2012, is dismissed asacademic in light of our determination on the appeal from the order dated December 30,2010; and it is further,
Ordered that the order dated December 30, 2010, is reversed, on the law, theappellants' motion for summary judgment dismissing the complaint and all cross claimsinsofar as asserted against them is granted, and the order dated January 23, 2012, isvacated; and it is further,
Ordered that one bill of costs is awarded to the appellants.
The plaintiff was a passenger in a jeep owned by the defendant John Manzolillo, andoperated by the defendant Jonathan A. Manzolillo (hereinafter the defendant driver),when it struck the rear of a tractor-trailer owned by the defendant Salem Truck Leasing,Inc., and operated by the defendant Maurice A. Alvarado (hereinafter together theappellants). The appellants moved for summary judgment dismissing the complaint andall cross claims insofar as asserted against them on the ground that they were not at faultin the happening of the subject accident.
" 'A driver of a vehicle approaching another vehicle from the rear is required tomaintain a reasonably safe distance and rate of speed under the prevailing conditions toavoid colliding with the other vehicle' " (Fajardo v City of New York, 95 AD3d 820, 820-821[2012], quoting Ortiz v HubTruck Rental Corp., 82 AD3d 725, 726 [2011]; see Taing v Drewery, 100AD3d 740 [2012]), and a [*2]rear-end collision witha stopped or stopping vehicle establishes a prima facie case of negligence on the part ofthe operator of the rear vehicle (see Ramos v TC Paratransit, 96 AD3d 924, 925 [2012];Fajardo v City of New York, 95 AD3d at 821). If the operator of the rear vehiclecannot come forward with evidence to rebut the inference of negligence, the operator ofthe lead vehicle is entitled to summary judgment on the issue of liability (see Cortes v Whelan, 83 AD3d763 [2011]; Staton vIlic, 69 AD3d 606 [2010]).
Here, the Supreme Court erred in denying the appellants' original motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them. The appellants established their prima facie entitlement to judgment as amatter of law by proffering the deposition testimony of the plaintiff and the defendantdriver, which established that the tractor-trailer was stopped or stopping when it wasstruck in the rear by the jeep driven by the defendant driver.
In opposition, the plaintiff relied on her own deposition testimony and that of thedefendant driver that the appellant Alvarado stopped suddenly. "A claim of a sudden stopby the leading vehicle, standing alone, is insufficient to rebut the presumption ofnegligence" (Byrne vCalogero, 96 AD3d 704, 705 [2012]; see Kastritsios v Marcello, 84 AD3d 1174, 1175 [2011]; Franco v Breceus, 70 AD3d767 [2010]; Mallen vSu, 67 AD3d 974, 975 [2009]; Lundy v Llatin, 51 AD3d 877 [2008]). Thus, even fullycrediting the plaintiff's version of the accident, she failed to raise a triable issue of fact asto whether the appellants were negligent, and, if so, whether that negligence was aproximate cause of the accident. Consequently, the appellants were entitled to summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them(see Kastritsios v Marcello, 84 AD3d at 1175; Plummer v Nourddine, 82AD3d 1069, 1070 [2011]; Reed v New York City Tr. Auth., 299 AD2d 330,331 [2002]).
The parties' remaining contentions, which relate to the order made upon renewal,have been rendered academic in light of our determination. Balkin, J.P., Hall, Austin andCohen, JJ., concur.