| Spinosa v Golden Touch Transp. of NY, Inc. |
| 2014 NY Slip Op 08327 [122 AD3d 916] |
| November 26, 2014 |
| Appellate Division, Second Department |
[*1]
| Dominic Spinosa, Respondent, v Golden TouchTransportation of NY, Inc., et al., Defendants/Third-Party Plaintiffs-Appellants. MarySpinosa, Third-Party Defendant. |
Molod Spitz & DeSantis, P.C., New York, N.Y. (Mary Sonneborn and AliceSpitz of counsel), for defendants/third-party plaintiffs-appellants.
Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Susan S. Carman andPeter Breheny of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants/third-partyplaintiffs appeal from an order of the Supreme Court, Kings County (Rothenberg, J.),dated October 25, 2012, which granted the plaintiff's motion for summary judgment onthe issue of liability and, in effect, searched the record and awarded summary judgmentin favor of the third-party defendant dismissing the third-party complaint.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motionfor summary judgment on the issue of liability is denied.
The plaintiff allegedly was injured when the car in which he was a passenger, andwhich was operated by his wife, the third-party defendant, Mary Spinosa (hereinafterSpinosa), was struck in the rear by a vehicle owned by the defendant/third-party plaintiffGolden Touch Transportation of NY, Inc., and operated by the defendant/third-partyplaintiff Erica T. Williams (hereinafter together the appellants). The plaintiff moved forsummary judgment on the issue of liability, arguing only that Williams's conduct was thesole proximate cause of the accident. The Supreme Court granted the plaintiff's motionand, in effect, searched the record and awarded summary judgment to Spinosa,dismissing the third-party complaint.
A rear-end collision with a stopped or stopping vehicle establishes a prima facie caseof negligence on the part of the operator of the rear vehicle, thereby requiring thatoperator to rebut the inference of negligence by providing a nonnegligent explanation forthe collision (see Raimondo vPlunkitt, 102 AD3d 851, 852 [2013]; Kertesz v Jason Transp. Corp., 102 AD3d 658 [2013]; Sehgal v www.nyairportsbus.com,Inc., 100 AD3d 860 [2012]). Here, the plaintiff established his prima facieentitlement to judgment as a matter of law on the issue of liability by demonstrating that,as the vehicle in which he was riding was slowing for traffic ahead of it, it was hit in therear by the appellants' vehicle (see Kertesz v Jason Transp. Corp., 102 AD3d 658 [2013];Costa v Eramo, 76 AD3d [*2]942 [2010]).
In opposition, however, the appellants raised a triable issue of fact with evidence of anonnegligent explanation for the collision (see Martin v Cartledge, 102 AD3d 841 [2013]; Kertesz v Jason Transp. Corp.,102 AD3d 658 [2013]; Pollard v Independent Beauty & Barber Supply Co., 94AD3d 845 [2012]). Specifically, Williams averred in an affidavit that the leadvehicle, driven by Spinosa, came to a sudden and unexplained stop in the middle of theleft-hand lane of the Long Island Expressway when there were no vehicles immediatelyin front of it. The appellants also submitted an affidavit from a nonparty witness whoaverred that the lead vehicle had "stopped abruptly."
Accordingly, the Supreme Court improperly granted the plaintiff's motion forsummary judgment on the issue of liability on the ground that Williams's conduct was thesole proximate cause of the accident, and improperly, in effect, searched the record toaward summary judgment in favor of Spinosa dismissing the third-party complaint.Rivera, J.P., Skelos, Dickerson and Barros, JJ., concur.