| Cortese v Pobejimov |
| 2016 NY Slip Op 00656 [136 AD3d 635] |
| February 3, 2016 |
| Appellate Division, Second Department |
[*1]
| Nicole M. Cortese, Respondent, v IgorPobejimov, Respondent, and Nicholas Triano et al.,Appellants. |
Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn,NY, of counsel), for appellants.
Banilov & Associates, P.C., Brooklyn, NY (Harlan Wittenstein of counsel), forplaintiff-respondent.
McMahon, Martine & Gallagher, LLP, Brooklyn, NY (Patrick W. Brophy ofcounsel), for defendant-respondent.
In an action to recover damages for personal injuries, the defendants Nicholas Trianoand Marena Associates, Inc., appeal, as limited by a letter dated October 7, 2015, from somuch of an order of the Supreme Court, Richmond County (Green, J.), dated November19, 2014, as denied their motion for summary judgment dismissing the complaint and allcross claims insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs, and the appellants' motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against them is granted.
On June 10, 2011, the plaintiff was a passenger in the backseat of a vehicle ownedby the defendant Marena Associates, Inc., and operated by the defendant Nicholas Triano(hereinafter together the appellants). The plaintiff alleged that while the appellant'svehicle was stopped for a traffic light at the intersection of Father Capodanno Boulevardand Hunter Avenue in Staten Island, it was struck from behind by a vehicle owned andoperated by the defendant Igor Pobejimov.
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, requiring that operator tocome forward with evidence of a nonnegligent explanation for the collision in order torebut the inference of negligence (see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008];Drakh v Levin, 123 AD3d1084, 1085 [2014]; Hauswirth v Transcare N.Y., Inc., 97 AD3d 792, 793[2012]; Napolitano vGalletta, 85 AD3d 881, 882 [2011]). In support of their motion for summaryjudgment, the appellants established, prima facie, their entitlement to judgment as amatter of law by demonstrating that while stopped in traffic for a red light at theaforementioned intersection, their vehicle was struck in the rear by Pobejimov's vehicle(see Sokolowska v Song,123 AD3d 1004, 1005 [2014]; Lisetskiy v Weiss, 123 AD3d 775, 777 [2014]; Gallo v Jairath, 122 AD3d795, 797 [2014]). In opposition, neither the plaintiff nor Pobejimov raised a triableissue [*2]of fact. Pobejimov's claim that the appellants'vehicle came to a sudden stop was conclusory and insufficient, in and of itself, to providea nonnegligent explanation for the rear-end collision (see Brothers v Bartling, 130 AD3d 554, 556 [2015]; Hackney v Monge, 103 AD3d844 [2013]; Xian Hong Panv Buglione, 101 AD3d 706, 707 [2012]). Furthermore, Pobejimov's contentionthat he did not recall seeing brake lights or any other illumination on the appellants'vehicle prior to the collision was also insufficient to raise a triable issue of fact (see Balducci v Velasquez, 92AD3d 626, 629 [2012]; Cortes v Whelan, 83 AD3d 763, 764 [2011]; Macauley v ELRAC, Inc., 6AD3d 584, 585 [2004]). Moreover, neither Pobejimov nor the plaintiff raised atriable issue of fact as to whether an alleged malfunction of the brake lights on theappellants' vehicle proximately caused the accident (see Gross v Marc, 2 AD3d 681, 682 [2003]; Filippazzov Santiago, 277 AD2d 419, 420 [2000]).
Accordingly, the Supreme Court should have granted the appellants' motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst them. Rivera, J.P., Balkin, Roman and Sgroi, JJ., concur.