| Gavrilova v Stark |
| 2015 NY Slip Op 05153 [129 AD3d 907] |
| June 17, 2015 |
| Appellate Division, Second Department |
[*1]
| Radmila Gavrilova, Respondent, v HermanStark, Defendant/Third-Party Plaintiff-Appellant, and Tatyana Kolmanovskiy et al.,Third-Party Defendants-Respondents. |
James G. Bilello (Russo, Apoznanski & Tambasco, Melville, N.Y. [YamileAl-Sullami], of counsel), for defendant/third-party plaintiff-appellant.
Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann,Jr., and Robert J. Pape, Jr., of counsel), for third-party defendant-respondent TatyanaKolmanovskiy.
Martyn, Toher, Martyn & Rossi (Harris King Fodera & Correia, NewYork, N.Y. [Jennifer P. Maas], of counsel), for third-party defendant-respondent RozaTskhakova.
In an action to recover damages for personal injuries, the defendant/third-partyplaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), datedJuly 25, 2014, which granted the plaintiff's motion for summary judgment on the issue ofliability, and granted the separate motions of the third-party defendants TatyanaKolmanovskiy and Roza Tskhakova for summary judgment dismissing the third-partycomplaint insofar as asserted against each of them.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting the plaintiff's motion for summary judgment on the issue of liability, andsubstituting therefor a provision denying that motion, and (2) by deleting the provisionthereof granting the motion of the third-party defendant Roza Tskhakova for summaryjudgment dismissing the third-party complaint insofar as asserted against her, andsubstituting therefor a provision denying that motion; as so modified, the order isaffirmed, with one bill of costs payable by the plaintiff and the third-party defendantRoza Tskhakova to the defendant/third-party plaintiff and the third-party defendantTatyana Kolmanovskiy.
This action arises from a three-car motor vehicle accident that occurred at theintersection of Ocean Parkway and Avenue L in Brooklyn. It is undisputed that thethird-party defendant Tatyana Kolmanovskiy, operating the lead vehicle on OceanParkway, abruptly slowed down and safely stopped her vehicle near the intersection withAvenue L when she was confronted with what appeared to be an emergency vehicle withits siren blaring and its lights flashing. The third-party defendant Roza Tskhakova wasoperating the middle vehicle, in which the plaintiff was a passenger, directly behindKolmanovskiy's vehicle, and the defendant/third-party plaintiff, Herman Stark, wasdriving the last vehicle behind the Tskhakova vehicle. According to the plaintiff's [*2]deposition testimony, she sustained injuries when the Starkvehicle struck the Tskhakova vehicle in the rear as it was slowing down, and propelled itinto the Kolmanovskiy vehicle that had stopped ahead of it. Accordingly, she soughtsummary judgment on the issue of liability against Stark. Moreover, Kolmanovskiy andTskhakova separately moved for summary judgment dismissing Stark's third-partycomplaint insofar as asserted against each of them, contending that they were free fromfault in the happening of the accident.
Stark opposed the summary judgment motions, averring in his affidavit thatKolmanovskiy had suddenly stopped the lead vehicle, that the Tskhakova vehicle thencollided with the rear of the Kolmanovskiy vehicle, and then his vehicle struck the rearof the Tskhakova vehicle. The Supreme Court granted the motions.
Contrary to Stark's contention, the Supreme Court properly granted Kolmanovskiy'smotion for summary judgment dismissing the third-party complaint insofar as assertedagainst her. Kolmanovskiy demonstrated her prima facie entitlement to judgment as amatter of law by establishing that she was free from fault because she safely and properlybrought her vehicle to a stop in order to yield the right of way to an apparent emergencyvehicle ahead of her (see Vehicle and Traffic Law § 1144 [a]; Barton v Youmans, 13 AD3d1151 [2004]; Fassbender v Conrey, 273 AD2d 22 [2000]; DiPaola vScherpich, 239 AD2d 459 [1997]). Under these circumstances, Stark's mereconclusory assertion that the Kolmanovskiy vehicle stopped suddenly was insufficient toraise a triable issue of fact in opposition to the motion (see generally Harrington vKern, 52 AD3d 473 [2008]; Johnston v Spoto, 47 AD3d 888 [2008]; David v New York City Bd. ofEduc., 19 AD3d 639 [2005]).
However, the Supreme Court erred in granting the motions of the plaintiff andTskhakova for summary judgment. Based on the plaintiff's account of the accident, thosemovants established, prima facie, their freedom from comparative fault and that Starkwas negligent based on the presumption of negligence that arises from a rear-endcollision with a stopped or stopping vehicle (see generally Drakh v Levin, 123 AD3d 1084 [2014]; Napolitano v Galletta, 85AD3d 881 [2011]; Ahmadv Grimaldi, 40 AD3d 786 [2007]). However, Stark's affidavit, which recited thathis vehicle only struck the Tskhakova vehicle after the Tskhakova vehicle had alreadycollided with the lead vehicle, raised triable issues of fact as to the sequence of thecollisions, whether Tskhakova was at fault, and the proximate cause of the plaintiff'salleged injuries (see e.g.Polanco-Espinal v City of New York, 84 AD3d 914 [2011]; Vavoulis v Adler, 43 AD3d1154 [2007]; Thoman vRivera, 16 AD3d 667 [2005]; Hudson v Cole, 264 AD2d 439 [1999];Viggiano v Camara, 250 AD2d 836 [1998]; Sanford v Stillitano, 241AD2d 489 [1997]; Omrami v Socrates, 227 AD2d 459 [1996]). Mastro, J.P.,Balkin, Sgroi and Duffy, JJ., concur.