| Billis v Tunjian |
| 2014 NY Slip Op 06044 [120 AD3d 1168] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| George Billis, Appellant, v Craig Tunjian,Defendant, and Terry Phillips et al., Respondents. |
John P. Margand, Scarsdale, N.Y., for appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E.Ferrucci of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Siegal, J.), dated May 10, 2013, whichgranted the motion of the defendants Terry Phillips and Rosa Phillips for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff was a passenger in a vehicle operated by the defendant Terry Phillipsand owned by the defendant Rosa Phillips (hereinafter together the Phillips defendants),which was struck from the rear by a vehicle owned and operated by the defendant CraigTunjian, while both vehicles were traveling eastbound on Route 25A. The plaintiffcommenced this action against the defendants to recover damages for personal injurieshe allegedly sustained as a result of the accident.
The Phillips defendants moved for summary judgment dismissing the complaintinsofar as asserted against them, contending that Tunjian alone was negligent in causingthe accident since their vehicle had been stopped at a red light at Route 25A'sintersection with Sound Avenue when the accident occurred. The Supreme Court grantedthe 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" (Scheker v Brown, 85 AD3d 1007, 1007 [2011] [internalquotation marks omitted]). "As a general rule, 'a rear-end collision establishes a primafacie case of negligence on the part of the operator of the rear vehicle, thereby requiringthat operator to rebut the inference of negligence by providing a nonnegligentexplanation for the collision' " (Kastritsios v Marcello, 84 AD3d 1174, 1174-1175 [2011],quoting Plummer vNourddine, 82 AD3d 1069, 1069-1070 [2011]). This is true whether the leadvehicle is stopped or stopping (see Xian Hong Pan v Buglione, 101 AD3d 706, 707[2012]).
[*2] Where the movant has establishedhis or her entitlement to judgment as a matter of law, the burden shifts to the opposingparty to provide sufficient evidence to raise a triable issue of fact as to the moving party'scomparative fault (see Lu YuanYang v Howsal Cab Corp., 106 AD3d 1055 [2013]; Sirot v Troiano, 66 AD3d763, 764 [2009]). A bare allegation that the lead vehicle stopped short is insufficientto rebut the inference of negligence on the part of the driver of the following vehicle(see Xian Hong Pan v Buglione, 101 AD3d at 707; Staton v Ilic, 69 AD3d606, 606 [2010]).
Here, the Phillips defendants established their prima facie entitlement to judgment asa matter of law (see Moore vSingh, 108 AD3d 602, 603 [2013]; Xian Hong Pan v Buglione, 101AD3d at 707; Nozine vAnurag, 38 AD3d 631, 632 [2007]). They submitted excerpts of the depositiontestimony of Terry Phillips, who stated that he saw the color of the traffic light at thesubject intersection change from green to yellow when he was approximately 10 carlengths away from the intersection, that he then applied his brakes, and that, at the pointof impact, he had been stopped at the red light for "a couple of seconds" when his vehiclewas struck in the rear by Tunjian's vehicle. Further, the Phillips defendants submittedexcerpts of Tunjian's deposition testimony, wherein he stated that just before impact, hehad glanced down at his gas gauge for a split second as his vehicle was still moving and,as soon as he looked up, the front of his vehicle made contact with the rear of the Phillipsdefendants' vehicle despite having applied his brakes.
In opposition, the plaintiff failed to raise a triable issue of fact as to whether TerryPhillips contributed to the happening of the accident (see Williamson v Coleman, 114 AD3d 768, 768 [2014];Moore v Singh, 108 AD3d at 603; Nozine v Anurag, 38 AD3d at 632).The plaintiff's contention that Terry Phillips's deposition testimony that he had stoppedprior to the impact differed from his statement to the police that he had been slowingdown for a yellow light at the time of the impact is immaterial to the issue of TerryPhillips's comparative fault (see Xian Hong Pan v Buglione, 101 AD3d at 707;see also Scheker v Brown, 85 AD3d at 1007; Kastritsios v Marcello, 84AD3d at 1175). Moreover, the plaintiff's assertion that Terry Phillips's vehicle stoppedshort was insufficient to defeat the Phillips defendants' summary judgment motion(see Xian Hong Pan v Buglione, 101 AD3d at 707).
Accordingly, the Supreme Court properly granted the Phillips defendants' motion forsummary judgment dismissing the complaint insofar as asserted against them. Dickerson,J.P., Leventhal, Austin and Hinds-Radix, JJ., concur.