| Rodriguez v Farrell |
| 2014 NY Slip Op 02027 [115 AD3d 929] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Mercedes Rodriguez et al., Respondents, v SeanFarrell, Appellant. |
—[*1] Elliott Ifraimoff & Associates, P.C., Forest Hills, N.Y. (Dmitriy Shulman ofcounsel), for respondent Mercedes Rodriguez. Schulman Blitz, LLP, New York, N.Y. (Fredrick A. Schulman of counsel), forrespondent Rodolfo Gomez.
In a consolidated action to recover damages for personal injuries, the defendantappeals from (1) an order of the Supreme Court, Kings County (F. Rivera, J.), dated July20, 2012, which granted the motion of the plaintiff Mercedes Rodriguez for summaryjudgment on the issue of liability, and (2) an order of the same court dated November 9,2012, which granted the motion of the plaintiff Rodolfo Gomez for summary judgmenton the issue of liability.
Ordered that the orders are affirmed, with one bill of costs.
This case arises from a rear-end collision involving two vehicles. The plaintiffsMercedes Rodriguez and Rodolfo Gomez were passengers in a vehicle operated byNelson Tomas Moncion, which was struck in the rear by a vehicle operated by theappellant, Sean Farrell. The plaintiffs commenced separate actions against Farrell. Thetwo actions were subsequently consolidated for all purposes.
Rodriguez moved for summary judgment on the issue of liability. The SupremeCourt granted the motion, concluding that Farrell's negligence was the sole proximatecause of the accident. Gomez separately moved for summary judgment on the issue ofliability. The Supreme Court granted the motion, again concluding that Farrell'snegligence was the sole proximate cause of the accident. We affirm, albeit on a differentground.
Both plaintiffs established their entitlement to judgment as a matter of law bydemonstrating, prima facie, that the vehicle in which they were passengers was struck inthe rear by Farrell's vehicle (seeKertesz v Jason Transp. Corp., 102 AD3d 658 [2013]; Kastritsios v Marcello, 84AD3d 1174 [2011]). "A rear-end collision with a stopped or stopping vehicle createsa prima facie case of negligence against the operator of the rear vehicle, thereby requiringthat operator to rebut the inference of negligence by providing a nonnegligentexplanation for the collision" (Volpe v [*2]Limoncelli, 74AD3d 795, 795 [2010]). In opposition to the plaintiffs' prima facie showings, Farrellfailed to provide a nonnegligent explanation for the rear-end collision. Although Farrellsubmitted evidence sufficient to raise a triable issue of fact as to whether Moncion wascomparatively at fault in causing the accident (see Pollard v Independent Beauty & Barber Supply Co., 94AD3d 845 [2012]; Vargasv Luxury Family Corp., 77 AD3d 820 [2010]), that evidence was insufficient todefeat the plaintiffs' motions for summary judgment since Farrell failed to raise a triableissue of fact as to whether either one of the plaintiffs was at fault in the happening of theaccident. Upon establishing his or her freedom from fault, the right of an innocentpassenger to an award of summary judgment on the issue of liability against one driver isnot barred or restricted by potential issues of comparative fault as between that driver andthe driver of another vehicle involved in the accident (see Medina v Rodriguez, 92AD3d 850 [2012]; Garcia v Tri-County Ambulette Serv., 282 AD2d 206,207 [2001]; Johnson v Phillips, 261 AD2d 269 [1999]; Silberman v SurreyCadillac Limousine Serv., 109 AD2d 833, 833-834 [1985]). Additionally, themotions were not premature. Farrell failed to demonstrate that discovery would lead torelevant evidence or that facts essential to justify opposition to the motions wereexclusively within the knowledge and control of the plaintiffs (see CPLR 3212[f]; Medina v Rodriguez, 92 AD3d at 851; Hill v Ackall, 71 AD3d 829 [2010]). Accordingly, theSupreme Court properly granted the plaintiffs' separate motions for summary judgmenton the issue of Farrell's liability. Mastro, J.P., Dillon, Leventhal and Duffy, JJ., concur.