| Gallo v Jairath |
| 2014 NY Slip Op 07979 [122 AD3d 795] |
| November 19, 2014 |
| Appellate Division, Second Department |
[*1]
| Christopher N. Gallo, Appellant, v Sapna M.Jairath et al., Respondents. |
Daniel E. Rausher, Brooklyn, N.Y., for appellant.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Kings County (Solomon,J.), dated August 8, 2013, as denied that branch of his cross motion which was forsummary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the plaintiff's cross motion which was for summary judgment onthe issue of liability against the defendants Sapna M. Jairath, Surjit Jairath, and RamnikJairath, and substituting therefor a provision granting that branch of the cross motion; asso modified, the order is affirmed insofar as appealed from, with costs to the plaintiffpayable by the defendants Sapna M. Jairath, Surjit Jairath, and Ramnik Jairath.
The plaintiff alleges that he was injured when, while she was a passenger in a vehicleoperated by the defendant Michael R. Calafiore, Calafiore's vehicle was struck in the rearby a vehicle operated by the defendant Sapna M. Jairath and owned by the defendantsSurjit Jairath and Ramnik Jairath (hereinafter collectively the Jairath defendants). Afterissue was joined, the plaintiff cross-moved, inter alia, for summary judgment on the issueof liability. The Supreme Court denied that branch of the motion. We modify.
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]; see also Vehicle and Traffic Law § 1129[a]). Drivers have a duty to see what should be seen and to exercise reasonable careunder the circumstances to avoid an accident (see Maragos v Sakurai, 92 AD3d 922, 923 [2012]; Balducci v Velasquez, 92AD3d 626, 628 [2012]; Filippazzo v Santiago, 277 AD2d 419 [2000])." 'A rear-end collision with a stopped or stopping vehicle creates a prima faciecase of negligence against the operator of the rear vehicle, thereby requiring that operatorto rebut the inference of negligence by providing a nonnegligent explanation for thecollision' " (Volpe vLimoncelli, 74 AD3d 795, 795 [2010], quoting Klopchin v Masri, 45 AD3d737, 737 [2007]; seeTutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; Williams v Spencer-Hall, 113AD3d 759, 760 [2014]; Staton v Ilic, 69 AD3d 606 [2010]).
Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter[*2]of law against the Jairath defendants by submitting,inter alia, his own affidavit and the police accident report, which both described thecircumstances of the accident. This evidence demonstrated that the Calafiore vehicle, inwhich the plaintiff was a passenger, was struck in the rear by the Jairath vehicle becauseSapna M. Jairath failed to brake in time (see Williams v Spencer-Hall, 113 AD3dat 760; Medina vRodriguez, 92 AD3d 850, 851 [2012]; Volpe v Limoncelli, 74 AD3d at795). In opposition, the Jairath defendants failed to raise a triable issue of fact. The rightof the plaintiff, as a nonculpable passenger, to summary judgment on the complaint onthe issue of liability is not restricted by possible issues of comparative negligencebetween the defendant drivers (see CPLR 3212 [g]; Anzel v Pistorino, 105 AD3d784, 786 [2013]; Medina vRodriguez, 92 AD3d 850, 850 [2012]; Garcia v Tri-County AmbuletteServ., 282 AD2d 206, 207 [2001]; Johnson v Phillips, 261 AD2d 269, 272[1999]; see also Conigliaro vPremier Poultry, Inc., 67 AD3d 954, 955 [2009]). As the plaintiff correctlycontends, the affirmation of counsel for the Jairath defendants, standing alone, isinsufficient to raise a triable issue of fact (see CPLR 3212 [b]; Roche v HearstCorp., 53 NY2d 767, 769 [1981]; see also Rotuba Extruders v Ceppos, 46NY2d 223, 229 [1978]). Therefore, the Supreme Court should have granted that branchof the plaintiff's cross motion which was for summary judgment on the issue of liabilityagainst the Jairath defendants.
The Supreme Court properly denied that branch of the plaintiff's cross motion whichwas for summary judgment on the issue of liability against Calafiore, since the plaintifffailed to make a prima facie showing of entitlement to judgment as a matter of lawregarding Calafiore's liability in causing or contributing to the accident (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Therefore, we need not consider the adequacy ofthe papers submitted in opposition to that branch of the cross motion. Balkin, J.P.,Leventhal, Hinds-Radix and LaSalle, JJ., concur.