| Brothers v Bartling |
| 2015 NY Slip Op 05630 [130 AD3d 554] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Sameera N. Brothers et al.,Respondents, v Susan L. Bartling et al., Respondents, and Cynthia Price et al.,Appellants. |
James G. Bilello (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J.Mitola], of counsel), for appellants.
In an action to recover damages for personal injuries, the defendants Cynthia Priceand Kenneth Gill appeal, as limited by their brief, from so much of an order of SupremeCourt, Kings County (Velasquez, J.), dated March 19, 2014, as denied their motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendants Cynthia Price and Kenneth Gill for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them isgranted.
This action arises out of a two-vehicle accident that occurred on South ConduitAvenue where it merges with the Belt Parkway in Queens on June 17, 2011. Theplaintiffs, Sameera N. Brothers and Lisa M. Slocumb, were passengers in a vehicleowned by the defendants Cynthia Price and Kenneth Gill, and operated by Gill, when itwas struck in the rear by a vehicle owned by the defendant Susan L. Bartling, andoperated by the defendant Jeffrey D. Roux. The plaintiffs commenced this action againstthe defendants to recover damages for personal injuries. Price and Gill moved forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them. The Supreme Court denied the motion.
"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 vehicle,and to exercise reasonable care to avoid colliding with the other vehicle" (Gaeta v Carter, 6 AD3d576, 576 [2004]; see Gallov Jairath, 122 AD3d 795, 796 [2014]; Taing v Drewery, 100 AD3d 740, 741 [2012]; Ortiz v Hub Truck RentalCorp., 82 AD3d 725 [2011]; Nsiah-Ababio v Hunter, 78 AD3d 672 [2010]; see alsoVehicle and Traffic Law § 1129 [a]).
" 'A rear-end collision with a stopped or stopping vehicle creates a primafacie case of negligence against the operator of the rear vehicle, thereby requiring thatoperator to rebut the inference of negligence by providing a nonnegligent explanation forthe collision' " (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]; Le Grand v Silberstein, 123AD3d 773 [2014]; Williams v Spencer-Hall, 113 AD3d 759, 760 [2014]).
A nonnegligent explanation for a rear-end collision may include evidence of asudden stop of the lead vehicle (see Le Grand v Silberstein, 123 AD3d at 773;Amador v City of New York, [*2]120 AD3d 526,526 [2014]; Ramos v TCParatransit, 96 AD3d 924 [2012]). However, "vehicle stops which areforeseeable under the prevailing traffic conditions, even if sudden and frequent, must beanticipated by the driver who follows, since he or she is under a duty to maintain a safedistance between his or her car and the car ahead" (Shamah v Richmond CountyAmbulance Serv., 279 AD2d 564, 565 [2001]; see Le Grand v Silberstein,123 AD3d at 773; Gutierrez vTrillium USA, LLC, 111 AD3d 669, 671 [2013]; Robayo v Aghaabdul, 109AD3d 892, 893 [2013]). Moreover, "[a] conclusory assertion by the operator of thefollowing vehicle that the sudden stop of the vehicle caused the accident is insufficient,in and of itself, to provide a nonnegligent explanation" (Gutierrez v Trillium USA,LLC, 111 AD3d at 670-671; see Le Grand v Silberstein, 123 AD3d at 773;Robayo v Aghaabdul, 109 AD3d at 893; Xian Hong Pan v Buglione, 101 AD3d 706, 707[2012]).
Here, Price and Gill established their prima facie entitlement to judgment as a matterof law through the deposition testimony of Gill and the plaintiffs, which demonstratedthat traffic was moving slowly, and Gill's vehicle was merging onto the parkway when itwas struck in the rear by the vehicle operated by Roux (see Le Grand vSilberstein, 123 AD3d at 773; Gutierrez v Trillium USA, LLC, 111 AD3d at671; Robayo v Aghaabdul, 109 AD3d at 893; Xian Hong Pan v Buglione,101 AD3d at 707). In opposition to this prima facie showing, Bartling and Roux failed toraise a triable issue of fact as to whether any negligence on the part of Gill contributed tothe accident (see Le Grand v Silberstein, 123 AD3d at 773; Gutierrez vTrillium USA, LLC, 111 AD3d at 671). Roux's assertion that it was the sudden stopof Gill's vehicle which caused the accident was insufficient, in and of itself, to raise atriable issue of fact as to whether there was a nonnegligent explanation for the rear-endcollision (see Le Grand v Silberstein, 123 AD3d at 773; Gutierrez v TrilliumUSA, LLC, 111 AD3d at 671).
Accordingly, the Supreme Court should have granted Price's and Gill's motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them. Mastro, J.P., Chambers, Roman and LaSalle, JJ., concur.