| Moore v Singh |
| 2013 NY Slip Op 05193 [108 AD3d 602] |
| July 10, 2013 |
| Appellate Division, Second Department |
| Kim Moore, Appellant, v Kuldip Singh,Respondent. |
—[*1] Peknic, Peknic & Schaefer, LLC, Long Beach, N.Y. (Charles M. Peknic of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Orange County (Ecker, J.), dated February 27, 2012, whichgranted the defendant's motion for summary judgment dismissing the complaint anddenied the plaintiff's cross motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
On August 3, 2008, around noon, the plaintiff, while operating his motorcycle onRoute 52 in Newburgh, allegedly sustained injuries as a result of coming into contactwith the rear of a cargo van operated by the defendant. Both the plaintiff's motorcycleand the defendant's van had been traveling eastbound on Route 52, a two-way road withone lane for travel in each direction.
The plaintiff commenced this action against the defendant to recover damages forpersonal injuries. The defendant moved for summary judgment dismissing the complaintand the plaintiff cross-moved for summary judgment on the issue of liability. TheSupreme Court granted the defendant's motion and denied the plaintiff's cross motion.
" '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' " (Ortiz v Hub Truck Rental Corp., 82 AD3d 725, 726[2011], quoting Nsiah-Ababio vHunter, 78 AD3d 672, 672 [2010]; see Vehicle and Traffic Law §1129 [a]; Fajardo v City of NewYork, 95 AD3d 820, 820-821 [2012]; Zweeres v Materi, 94 AD3d 1111, 1111 [2012]).
The defendant established his prima facie entitlement to judgment as a matter of lawby submitting his deposition testimony that he was stopped on Route 52 due to thepresence of other vehicles stopped in front of him in the eastbound lane of Route 52which were waiting for another vehicle to turn left. The defendant also testified that,upon seeing the stopped vehicles in front of him, he applied pressure to his brakes and ittook about four to five seconds from the time he saw those vehicles until his vehiclecame to a stop. He also testified that, although he did not see the plaintiff's motorcyclebefore the accident occurred, he was stopped for 20 seconds before he heard the sound ofthe plaintiff's motorcycle. In addition, the defendant submitted the plaintiff's depositiontestimony in which the plaintiff admitted that he hit the defendant's van in the rear when,while traveling 40 to 45 miles per hour approximately two to three car lengths behind thedefendant's [*2]van, he was unable to stop despite seeingthe defendant's brake lights illuminate approximately one to two seconds before impact.Consequently, the defendant demonstrated prima facie that he was not at fault in thehappening of the accident (seeNozine v Anurag, 38 AD3d 631, 632 [2007]; Sherin v Roda, 14 AD3d604, 605 [2005]).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether thedefendant was negligent or, if so, whether that negligence caused or contributed to thehappening of the accident (see Nozine v Anurag, 38 AD3d at 632; Garces v Karabelas, 17 AD3d633, 634 [2005]). The plaintiff is correct that the Supreme Court should haveaccepted his affidavit and that of his passenger submitted in opposition to the defendant'smotion and in support of his cross motion, as they did not contradict the plaintiff's earlierdeposition testimony (compareSunshine Care Corp. v Warrick, 100 AD3d 981, 983 [2012]). However, evengiving full credit to their statements that, at the point where the accident occurred, whichwas not near an intersection, the defendant moved toward the left of the lane whilecontinuing to stay within that lane, with his left directional signal illuminated, and thenmoved back to the right side within that same lane before the plaintiff's motorcycle hitthe rear of the defendant's van, such statements were insufficient to raise a triable issue offact as to whether the defendant was at fault in the happening of the accident (seeNozine v Anurag, 38 AD3d at 632; Garces v Karabelas, 17 AD3d at 634).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint and denied the plaintiff's cross motion forsummary judgment on the issue of liability. Rivera, J.P., Dillon, Dickerson and Austin,JJ., concur.