| Delgado v Bang |
| 2014 NY Slip Op 05828 [120 AD3d 608] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Maryssel Delgado, Respondent, v Marie Banget al., Appellants, et al., Defendant. |
James G. Bilello, Westbury, N.Y. (Patricia McDonagh and Shlomo Z. Gunsburg ofcounsel), for appellants.
Sinel & Associates, PLLC, New York, N.Y. (Walter Osuna of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Marie Bang andPatrick Sylvestre Nonos Bang appeal (1), as limited by their brief, from so much of anorder of the Supreme Court, Kings County (F. Rivera, J.), dated May 17, 2013, as deniedtheir motion for summary judgment dismissing the complaint insofar as asserted againstthem, and (2) from an order of the same court dated July 17, 2013, which granted theplaintiff's cross motion for summary judgment against them on the issue of liability.
Ordered that the order dated May 17, 2013, is affirmed insofar as appealed from,without costs or disbursements; and it is further,
Ordered that the order dated July 17, 2013, is reversed, on the law, without costs ordisbursements, and the plaintiff's cross motion for summary judgment against thedefendants Marie Bang and Patrick Sylvestre Nonos Bang on the issue of liability isdenied.
On July 4, 2011, the plaintiff was a passenger on a motorcycle operated by thedefendant Humberto Cordero. While traveling eastbound on the Brooklyn Bridge,Cordero struck the rear of a vehicle operated by the defendant Marie Bang (hereinafterBang), and owned by the defendant Patrick Sylvestre Nonos Bang (hereinafter NonosBang and together the Bang defendants), while the Bang vehicle was stopped on theBrooklyn Bridge. According to Bang, she stopped her vehicle in the right lane of thebridge and activated her hazard lights a couple of minutes before the collision becauseshe was experiencing engine difficulties. The impact of the collision caused bothCordero and the plaintiff to be thrown from the motorcycle.
The plaintiff commenced this action to recover damages for personal injuries againstCordero and the Bang defendants. Cordero failed to interpose an answer, and theSupreme Court granted the plaintiff leave to enter a default judgment against him on theissue of liability. After depositions had been conducted, the Bang defendants moved forsummary judgment dismissing the [*2]complaint insofaras asserted against them, contending that Cordero had breached his statutory duty tomaintain a safe distance between his motorcycle and their vehicle. The Bang defendantsalso argued that Bang was not comparatively negligent in stopping her vehicle on theBrooklyn Bridge because she was faced with an emergency situation when the vehiclebegan experiencing mechanical difficulties and slowing down for no apparent reason.The plaintiff opposed the motion, and cross-moved for summary judgment on the issueof liability against the Bang defendants. The plaintiff maintained that the emergencydoctrine was inapplicable to this case, and that Bang was negligent in stopping thevehicle on the bridge. The Supreme Court denied the Bang defendants' motion, andgranted the plaintiff's cross motion.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle and imposes a duty on theoperator to rebut the inference of negligence by providing a non-negligent explanationfor the collision (see Mallen vSu, 67 AD3d 974 [2009]; Zdenek v Safety Consultants, Inc., 63 AD3d 918 [2009];Purcell v Axelsen, 286 AD2d 379, 380 [2001]; see also Vehicle andTraffic Law § 1129 [a]).
Contrary to the Bang defendants' contention, the Supreme Court properly deniedtheir motion for summary judgment dismissing the complaint insofar as asserted againstthem. The Bang defendants failed to make a prima facie showing of their entitlement tojudgment as a matter of law, because although Cordero's motorcycle struck their vehiclein the rear, their own submissions raised issues of fact as to whether Bang wascomparatively negligent in stopping her vehicle on the bridge (see Vehicle andTraffic Law § 1202 [a] [1] [g]; see also Marsicano v Fabrizio, 61 AD3d 941 [2009]; Gregson v Terry, 35 AD3d358, 360-361 [2006]). While the emergency doctrine is inapplicable to the facts ofthis case (see Lifson v City ofSyracuse, 17 NY3d 492, 497 [2011], citing Caristo v Sanzone, 96 NY2d172 [2001]; Ferrer v Harris, 55 NY2d 285 [1982]; Hendrickson v Philbor Motors,Inc., 101 AD3d 812 [2012]; Williams v City of New York, 88 AD3d 989 [2011]; Jacobellis v New York StateThruway Auth., 51 AD3d 976 [2008]), Bang's deposition testimony neverthelessraises an issue of fact as to whether she could have safely continued to operate hervehicle while on the bridge, and whether it was reasonable for her to stop the vehicleunder the circumstances (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]).
Since issues of fact exist as to whether Bang was negligent, the Supreme Court alsoshould have denied the plaintiff's cross motion for summary judgment on the issue ofliability against the Bang defendants (see id. at 324). Eng, P.J., Austin,Hinds-Radix and LaSalle, JJ., concur.