| Whelan v Sutherland |
| 2015 NY Slip Op 04476 [128 AD3d 1055] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| Carla Whelan, Respondent, v Michelle J.Sutherland et al., Defendants, and Darlene Ricciardi,Appellant. |
Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel),for appellant.
Nancy Galassi (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant DarleneRicciardi appeals, as limited by her brief, from so much of an order of the SupremeCourt, Suffolk County (Gazzillo, J.), dated April 4, 2014, as granted that branch of theplaintiff's motion which was for summary judgment on the issue of liability againsther.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the plaintiff's motion which was for summary judgment on the issue ofliability against the defendant Darlene Ricciardi is denied.
On April 12, 2010, the plaintiff allegedly sustained personal injuries as a result of anaccident that occurred as she was driving on the Long Island Expressway. According tothe plaintiff, at the time of that accident, she was slowing down in traffic when hervehicle was struck in the rear by a vehicle owned and operated by the defendant DarleneRicciardi. The plaintiff further alleged that her vehicle was struck a second time byRicciardi, when Ricciardi's vehicle was struck by a vehicle owned and operated by thedefendant Michelle J. Sutherland. In the order appealed from, insofar as relevant here,the Supreme Court granted that branch of the plaintiff's motion which was for summaryjudgment on the issue of liability against Ricciardi.
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 Drakh vLevin, 123 AD3d 1084, 1085 [2014]; Lisetskiy v Weiss, 123 AD3d 775, 776 [2014]; Spinosa v Golden Touch Transp. ofNY, Inc., 122 AD3d 916, 917 [2014]). "A nonnegligent explanation includes,but is not limited to, 'sudden or unavoidable circumstances' " (D'Agostino v YRC, Inc., 120AD3d 1291, 1292 [2014], quoting Gambino v City of New York, 205 AD2d583, 583 [1994]).
Here, the plaintiff established her prima facie entitlement to judgment as a matter oflaw by demonstrating that Ricciardi's vehicle struck the rear of her vehicle while she wasstopping in traffic (see Le Grandv Silberstein, 123 AD3d 773, 775 [2014]; Spinosa v Golden Touch Transp.of NY, Inc., 122 AD3d at 917).
[*2] However, in opposition, Ricciardi raised a triable issue of fact with evidence of anonnegligent explanation for the subject collision (see D'Agostino v YRC, Inc.,120 AD3d at 1292). In an affidavit submitted by Ricciardi in opposition to the plaintiff'smotion, Ricciardi provided an account of the accident that differed from the plaintiff'sversion. Therein, Ricciardi stated that she had stopped behind the plaintiff's vehicle, withher "foot on the brake for more than five seconds," when her vehicle was struck in therear by Sutherland's vehicle. According to Ricciardi, as a result of the impact to the rearof her vehicle by Sutherland's vehicle, she was pushed forward into the rear of theplaintiff's vehicle. In contrast to the plaintiff's version, Ricciardi described only oneimpact by her vehicle to the rear of the plaintiff's vehicle. Accordingly, the SupremeCourt should have denied that branch of the plaintiff's motion which was for summaryjudgment on the issue of liability against Ricciardi. Rivera, J.P., Austin, Cohen andDuffy, JJ., concur.