| Theo v Vasquez |
| 2016 NY Slip Op 00961 [136 AD3d 795] |
| February 10, 2016 |
| Appellate Division, Second Department |
[*1]
| Guillaume Theo, Respondent, v DonaldVasquez, Jr., et al., Respondents, and Louis R. Dominique et al.,Appellants. |
Picciano & Scahill, P.C., Westbury, NY (Francis J. Scahill and Andrea E.Ferrucci of counsel), for appellants.
William Schwitzer & Associates, P.C., New York, NY (Keri Lynn Timlin ofcounsel), for plaintiff-respondent.
Russo & Toner, LLP, New York, NY (Alexandra L. Alvarez of counsel), fordefendants-respondents Donald Vasquez, Jr., and R. Dana Pest Control, Corp.
In an action to recover damages for personal injuries, the defendants Louis R.Dominique and Merline Adrien appeal, as limited by their brief, from so much of anorder of the Supreme Court, Kings County (Bayne, J.), dated January 14, 2015, as deniedtheir motion for summary judgment dismissing the complaint and all cross claims insofaras asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs payable by the defendants Donald Vasquez, Jr., and R. Dana Pest Control, Corp.,to the defendants Louis R. Dominique and Merline Adrien, the motion of the defendantsLouis R. Dominique and Merline Adrien for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against them is granted and, uponsearching the record, the plaintiff's cross motion for summary judgment on the issue ofliability against the defendants Donald Vasquez, Jr., and R. Dana Pest Control, Corp., isgranted.
The plaintiff was a passenger in a vehicle operated by the defendant Louis R.
Dominique and owned by the defendant Merline Adrien when that vehicle wasrear-ended by a vehicle operated by the defendant Donald Vasquez, Jr. At the time of theaccident Vasquez was operating his vehicle within the scope of his employment with thedefendant R. Dana Pest Control, Corp. (hereinafter Dana). The plaintiff commenced thisaction to recover damages for personal injuries against, among others, Dominique,Adrien, Vasquez, and Dana. Dominique and Adrien moved for summary judgmentdismissing the complaint and all cross claims insofar as asserted against them,contending that Vasquez's negligent operation of his vehicle was the sole proximatecause of the accident. The plaintiff cross-moved for summary judgment on the issue ofliability against Vasquez and Dana, contending that Vasquez's negligent operation of hisvehicle was the sole proximate cause of the accident. The Supreme Court denied themotion and the cross motion. Dominique and Adrien appeal.
A rear-end collision with a stopped or stopping vehicle establishes a prima facie case[*2]of negligence on the part of the operator of the rearvehicle, thereby requiring that operator to rebut the inference of negligence by providinga nonnegligent explanation for the collision (see Le Grand v Silberstein, 123 AD3d 773, 774 [2014]; Cheow v Cheng Lin Jin, 121AD3d 1058, 1058-1059 [2014]; Kastritsios v Marcello, 84 AD3d 1174, 1174-1175 [2011]).While a nonnegligent explanation for a rear-end collision may include evidence of asudden stop of the lead vehicle, " 'vehicle stops which are foreseeable under theprevailing traffic conditions, even if sudden and frequent, must be anticipated by thedriver who follows, since he or she is under a duty to maintain a safe distance betweenhis or her car and the car ahead' " (Brothers v Bartling, 130 AD3d 554, 556 [2015], quotingShamah v Richmond County Ambulance Serv., 279 AD2d 564, 565 [2001]; see Robayo v Aghaabdul, 109AD3d 892, 893 [2013]).
Here, Dominique and Adrien established their prima facie entitlement to judgment asa matter of law by submitting the deposition testimony of the parties, which demonstratedthat the Dominique vehicle was slowing down for traffic in front of it when it was struckin the rear by the Vasquez vehicle, and that no negligence on the part of Dominiquecontributed to the accident (see Le Grand v Silberstein, 123 AD3d at 775;Robayo v Aghaabdul, 109 AD3d at 893; Cajas-Romero v Ward, 106 AD3d 850, 852 [2013]; Ayach v Ghazal, 25 AD3d742, 743 [2006]). In opposition, Vasquez and Dana failed to raise a triable issue offact. Accordingly, the Supreme Court should have granted the motion of Dominique andAdrien for summary judgment dismissing the complaint and all cross claims insofar asasserted against them.
Although the plaintiff has not appealed from the order, this Court has the authority tosearch the record and grant summary judgment to a non-appealing party with respect toan issue that was the subject of the motions before the Supreme Court (see Dunham vHilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Piltser v Donna Lee Mgt.Corp., 29 AD3d 973, 974-975 [2006]; Colon v Vargas, 27 AD3d 512, 514 [2006]). Uponsearching the record, we grant the plaintiff's cross motion for summary judgment on theissue of liability against the defendants Vasquez and Dana. Dillon, J.P., Dickerson,Hinds-Radix and Maltese, JJ., concur.