Summary
granting front defendants' motion for summary judgment of claims and cross-claims where plaintiff and co-defendants had failed to rebut prima facie negligence case; held that co-defendant's "testimony that [front defendants'] vehicle stopped suddenly is insufficient to raise a triable issue of fact"
Summary of this case from Tenas-Reynard v. Palermo Taxi Inc.Opinion
2012-12-11
Anna CORRIGAN, Plaintiff–Respondent, v. PORTER CAB CORP., et al., Defendants–Respondents, John Katsomaliaris, et al., Defendants–Appellants.
Marjorie E. Bornes, Brooklyn, for appellants. Werbel, Werbel & Verchick, LLP, Brooklyn (Glenn Verchick of counsel), for Anna Corrigan, respondent.
Marjorie E. Bornes, Brooklyn, for appellants. Werbel, Werbel & Verchick, LLP, Brooklyn (Glenn Verchick of counsel), for Anna Corrigan, respondent.
Gerber & Gerber, PLLC, Brooklyn (Thomas Torto of counsel), for Porter Cab Corp. and MD T. Islam, respondents.
, J.P., FRIEDMAN, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ.
Order, Supreme Court, New York County (George J. Silver, J.), entered April 9, 2012, which denied the motion of defendants John Katsomaliaris and Sunday J. Oseni for summary judgment dismissing the complaint and all cross claims as against them, unanimously reversed, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
“It is well settled that a rear-end collision with a stopped vehicle creates a presumption that the operator of the moving vehicle was negligent” ( Agramonte v. City of New York, 288 A.D.2d 75, 76, 732 N.Y.S.2d 414 [1st Dept. 2001] ). Defendants-appellants, through the deposition testimony of Oseni and plaintiff, made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the vehicle owned by Katsomaliaris and driven by Oseni was stopped at a red light when it was struck in the rear by the vehicle driven by defendant Islam, which propelled it into plaintiff as she attempted to cross the intersection. In opposition, defendant Islam failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision ( Profita v. Diaz, 100 A.D.3d 481, 954 N.Y.S.2d 40 [1st Dept. 2012] ).
Islam's testimony that defendants-appellants' vehicle stopped suddenly is insufficient to raise a triable issue of fact ( see Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept. 2010] ).Vehicle and Traffic Law § 1129 imposes “a duty to be aware of traffic conditions, including vehicle stoppages” ( Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept. 1999] ). While Islam maintains that the light was green when he struck defendants-appellants vehicle, Islam testified that the traffic was “medium” and that he was only approximately two feet away from defendants-appellants vehicle when he first saw it stopped. He did not explain why he did not maintain a safe distance between his vehicle and defendants-appellants' vehicle ( see Dattilo v. Best Transp. Inc., 79 A.D.3d 432, 913 N.Y.S.2d 163 [1st Dept. 2010];Soto–Maroquin v. Mellet, 63 A.D.3d 449, 449–450, 880 N.Y.S.2d 279 [1st Dept. 2009] ).
The plaintiff's completely speculative assertion that her injuries were worsened because Oseni may have stepped on the gas pedal instead of the brake after his vehicle was hit from behind was insufficient to defeat the motion for summary judgment ( see Sosa v. Rehmat, 46 A.D.3d 306, 847 N.Y.S.2d 186 [1st Dept. 2007];Sirico v. Beukelaer, 14 A.D.3d 549, 787 N.Y.S.2d 662 [2d Dept. 2005] ).