| Romero v Al Haag & Son Plumbing & Heating, Inc. |
| 2014 NY Slip Op 00337 [113 AD3d 746] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Francisco Romero, Respondent, v Al Haag & SonPlumbing & Heating, Inc., et al., Appellants. |
—[*1] Koenigsberg & Associates (Steven N. Feinman, White Plains, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (Lewis, J.), dated August 17, 2012, whichgranted the plaintiff's motion for summary judgment on the issue of liability and deniedtheir motion for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law §5102 (d) as a result of the subject accident.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting the plaintiff's motion for summary judgment on the issue of liability andsubstituting therefor a provision denying that motion; as so modified, the order isaffirmed, without costs or disbursements.
On December 10, 2008, a vehicle operated by the plaintiff was struck by thedefendants' vehicle. The plaintiff testified at his deposition that after driving through anintersection, he stopped his vehicle to allow a New York City bus to pull away from thecurb in front of him, and that the defendants' vehicle collided with the rear of theplaintiff's vehicle while it was stopped. The defendant driver testified at his depositionthat just prior to the alleged accident, the plaintiff's vehicle was swerving to the right andleft and stopping and starting repeatedly, and that it appeared that the operator of thevehicle was drunk. At no time did the defendant driver observe a bus. The defendantdriver testified that, after the plaintiff's vehicle suddenly accelerated and then stoppedshort, the front of the defendants' vehicle came in contact with the rear of the plaintiff'svehicle.
The Supreme Court should have denied the plaintiff's motion for summary judgmenton the issue of liability. "[A] rear-end collision with a stopped vehicle establishes a primafacie case of negligence on the part of the driver of the rear vehicle" (Tutrani v County of Suffolk,10 NY3d 906, 908 [2008] [internal quotation marks omitted]). Here, even assumingthat the defendant driver failed to maintain a reasonably safe distance and rate of speedwhile traveling behind the plaintiff's vehicle (see Vehicle and Traffic Law§ 1129 [a]), the deposition testimony of the defendant driver, which was [*2]submitted by the plaintiff, raised a triable issue of fact as towhether the plaintiff contributed to the accident by driving in an erratic manner (seeTutrani v County of Suffolk, 10 NY3d at 908; Kertesz v Jason Transp. Corp., 102 AD3d 658, 659 [2013];Hazzard v Burrowes, 95AD3d 829, 830 [2012]). Accordingly, the plaintiff failed to make a prima facieshowing of his entitlement to judgment as a matter of law (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
The Supreme Court properly denied the defendants' motion for summary judgmentdismissing the complaint on the ground that the plaintiff did not sustain a serious injurywithin the meaning of Insurance Law § 5102 (d) as a result of the subject accident.In opposition to the defendants' prima facie showing that the plaintiff did not sustain aserious injury within the meaning of Insurance Law § 5102 (d) as a result of thesubject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002];Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]), the plaintiff raised a triable issueof fact (see Alvarez v Prospect Hosp., 68 NY2d at 324 [1986]). Balkin, J.P.,Lott, Austin and Miller, JJ., concur.