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Jeremic v. Tong

Appellate Division of the Supreme Court of New York, Second Department
May 14, 2001
283 A.D.2d 461 (N.Y. App. Div. 2001)

Opinion

Submitted April 25, 2001.

May 14, 2001.

In an action to recover damages for personal injuries, etc., the third-party defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Dye, J.), dated June 13, 2000, as denied their motion for summary judgment dismissing the third-party complaint.

Robert P. Tusa, Garden City, N.Y. (David Holmes of counsel), for third-party defendants-appellants.

Before: BRACKEN, P.J., FRIEDMANN, FLORIO, H. MILLER and TOWNES, JJ.


ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

This action arises out of a three-vehicle collision on April 8, 1995. In denying the motion of the third-party defendants for summary judgment dismissing the third-party complaint, the Supreme Court improperly relied on its prior order denying the plaintiffs' motion for summary judgment on the issue of liability against the defendant. The third-party defendants did not have a full and fair opportunity to litigate the issue of who was at fault in the accident, and the prior determination did not necessarily resolve the issues presented in the third-party complaint (see, People v. Evans, 94 N.Y.2d 499, 502; Gilligan v. Reers, 255 A.D.2d 486).

In addition, on the merits, the third-party defendants are entitled to dismissal of the third-party complaint. A rear-end collision with a stopped vehicle creates a prima facie case of negligence on the part of the following vehicle, imposing a duty of explanation on the driver of that vehicle to rebut the inference of negligence by providing some non-negligent explanation for the collision (see, Colon v. Cruz, 277 A.D.2d 195; Hanak v. Jani, 265 A.D.2d 453). The evidence established that the third-party defendants' vehicle had come to a stop, and that it was struck from behind by the plaintiffs' vehicle, which had itself been struck from behind by the defendant's vehicle. Although the defendant claimed that the third-party defendants' vehicle stopped short, that allegation failed to raise a triable issue of fact as to whether the third-party defendants were negligent and whether such negligence was a proximate cause of the accident (see, Colon v. Cruz, supra).


Summaries of

Jeremic v. Tong

Appellate Division of the Supreme Court of New York, Second Department
May 14, 2001
283 A.D.2d 461 (N.Y. App. Div. 2001)
Case details for

Jeremic v. Tong

Case Details

Full title:NEBOJSA JEREMIC, ET AL., PLAINTIFFS, v. RAYMOND K. TONG, DEFENDANT…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 14, 2001

Citations

283 A.D.2d 461 (N.Y. App. Div. 2001)
724 N.Y.S.2d 484

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