Opinion
No. 1879 Index No. 25414/19 Case No. 2023-01304
03-19-2024
Daurin Taveras, Appellant, v. K&D Equipment Leasing Corp., et al., Respondents.
Sacco & Fillas, LLP, Astoria (Albert R. Matuza, Jr. of counsel), for appellant. Stonberg, Hickman & Pavloff LLP, New York (Carmen L. Borbon of counsel), for respondents.
Sacco & Fillas, LLP, Astoria (Albert R. Matuza, Jr. of counsel), for appellant.
Stonberg, Hickman & Pavloff LLP, New York (Carmen L. Borbon of counsel), for respondents.
Before: Kern, J.P., Moulton, Gesmer, Mendez, Michael, JJ.
Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about January 31, 2023, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The motion court properly granted defendants' motion for summary judgment dismissing the complaint. Defendants established prima facie entitlement to summary judgment by submitting defendant Kowalski's affidavit and the police officer's testimony, which stated that the vehicle operated by plaintiff rear-ended a box truck owned and operated by defendants which was changing lanes at the direction of a police officer (see Dattilo v Best Transp. Inc., 79 A.D.3d 432, 433 [1st Dept 2010]). That evidence establishes a prima facie case of negligence on the part of plaintiff, as the driver of the rear vehicle and imposes a duty on plaintiff "to come forward with an adequate non-negligent explanation for the accident" (Williams v Kadri, 112 A.D.3d 442, 442 [1st Dept 2013]; see Vehicle and Traffic Law § 1129[a]).
Plaintiff failed to rebut the presumption of negligence by providing a nonnegligent explanation, but instead contended that the accident involved a sideswipe of his car by defendants' truck which was unsafely changing lanes. However, defendant driver was following lawful directions of a police officer (Vehicle and Traffic Law § 1102). While the photographs of plaintiff's vehicle show scratches to the side panel of the vehicle, they clearly show that the most severe damage occurred in its front, and therefore do not refute the description of the accident in the police officer's report and testimony (see Kante v Ruiz, 221 A.D.3d 408, 409 [1st Dept 2023]; Thompson v Coca-Cola Bottling Co., 170 A.D.3d 588, 589 [1st Dept 2019]). Plaintiff also failed to raise a triable issue of fact concerning where his vehicle impacted defendants' truck. Thus, the sole proximate cause of the accident was plaintiff's failure to see that which he should have seen (see Sarosy v Scheina, 225 A.D.2d 493, 494 [1st Dept 1996]) and to follow the instructions of the police officer who was directing traffic (see Vehicle and Traffic Law § 1102).