| O'Rourke v Carucci |
| 2014 NY Slip Op 03813 [117 AD3d 1015] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| Kevin O'Rourke et al., Appellants, v Ralph T.Carucci et al., Respondents. |
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), forappellants.
David S. Kritzer & Associates, P.C., Smithtown, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Suffolk County (Pitts, J.), dated May 24, 2012, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
When the driver of an automobile approaches another automobile from the rear, heor she is bound to maintain a reasonably safe rate of speed and control over his or hervehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Taing v Drewery, 100AD3d 740 [2012]; Ortiz vHub Truck Rental Corp., 82 AD3d 725 [2011]; Nsiah-Ababio v Hunter, 78AD3d 672 [2010]; Power v Hupart, 260 AD2d 458 [1999]; see alsoVehicle and Traffic Law § 1129 [a]). In this context, drivers have aduty to see what should be seen and to exercise reasonable care under the circumstancesto avoid an accident (seeMaragos v Sakurai, 92 AD3d 922, 923 [2012]; Balducci v Velasquez, 92AD3d 626, 628 [2012]; Filippazzo v Santiago, 277 AD2d 419 [2000];Johnson v Phillips, 261 AD2d 269 [1999]).
A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence against the operator of the rear vehicle, thereby requiring that operator torebut the inference of negligence by providing a nonnegligent explanation for thecollision (see Tutrani v Countyof Suffolk, 10 NY3d 906, 908 [2008]; Martinez v Martinez, 93 AD3d 767, 768 [2012]; Giangrasso v Callahan, 87AD3d 521 [2011]; Parra vHughes, 79 AD3d 1113 [2010]).
Here, the defendants established their prima facie entitlement to judgment as a matterof law by presenting evidence that their vehicle was stopped and legally parked when itwas struck in the rear by a vehicle operated by the plaintiff Kevin O'Rourke (seeSchmidt v Edelman, 263 AD2d 502 [1999]; Young v City of New York, 113AD2d 833 [1985]; see also Downs v Toth, 265 AD2d 925 [1999]; Warren vDonovan, 254 AD2d 201 [1998]). In opposition to this showing, the plaintiffs failedto raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendants' motion for [*2]summary judgment dismissing the complaint. Skelos, J.P.,Austin, Sgroi and LaSalle, JJ., concur. [Prior Case History: 2012 NY Slip Op31450(U).]